Farm Service Agency
Foreign-Trade Zones Board
Industry and Security Bureau
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
National Park Service
Alcohol, Tobacco, Firearms, and Explosives Bureau
Drug Enforcement Administration
Employment and Training Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Bureau of Consumer Financial Protection.
Advisory opinion.
The Consumer Financial Protection Bureau (CFPB) is issuing this advisory opinion to affirm that the Equal Credit Opportunity Act and Regulation B protect not only those actively seeking credit but also those who sought and have received credit.
This advisory opinion is applicable on May 18, 2022.
Christopher Davis, Attorney-Advisor; Office of Fair Lending and Equal Opportunity, at
The CFPB is issuing this advisory opinion through the procedures for its Advisory Opinions Policy.
The Bureau is issuing this advisory opinion to affirm that the Equal Credit Opportunity Act (ECOA)
Then as now, ECOA defined “applicant” to mean “any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit.”
Congress originally tasked the Board of Governors of the Federal Reserve System (Board) with prescribing those regulations.
Two years after enacting ECOA, Congress significantly broadened the Act to prohibit discrimination on bases in addition to sex and marital status.
ECOA's notice requirements “were designed to fulfill the twin goals of consumer protection and education.”
Following the ECOA Amendments of 1976, the Board amended Regulation B, including by adding new provisions to implement ECOA's notice requirement.
Finally, the Board made a “minor editorial change” to Regulation B's definition of “applicant” in order to “express more succinctly the fact that the term includes both a person who requests credit and a debtor,” a debtor being one who has already requested and received credit.
The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted in 2010, revoked primary rulemaking responsibility under ECOA from the Board and transferred it to the newly created Bureau.
Shortly thereafter, the Bureau republished the Board's ECOA regulations, including the definition of “applicant,” without material change.
This advisory opinion applies to all “creditors” as defined in section 702 of ECOA.
ECOA and Regulation B plainly protect applicants who have received credit and are existing account holders, not just those in the process of applying for credit. This has been the longstanding position of the Bureau, and the view of Federal agencies prior to the Bureau's creation. Despite this well-established interpretation,
“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”
For one thing, the Court observed, there is “no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation.”
Reading ECOA's definition of “applicant” alongside the Act's other provisions makes clear that the term includes applicants who have received credit and become existing borrowers. For example, ECOA's core anti-discrimination provision protects “applicant[s]” from discrimination “with respect to
Similarly, ECOA's disclosure provision requires that creditors give a statement of reasons to “[e]ach applicant” against whom they take “adverse action.”
ECOA's private right of action points in the same direction. It allows an aggrieved “applicant” to bring suit against creditors who fail to comply with ECOA or Regulation B.
Congress's history of amending the statute strongly supports reading the statute to include existing borrowers. As noted, the Board issued Regulation B in 1975, through notice-and-comment rulemaking, shortly before ECOA took effect. The rule defined “applicant” to include “any person to whom credit is or has been extended.”
But the 1976 amendments did not limit the reasonable definition of “applicant” that the Board had promulgated just months before. To the contrary, the 1976 amendments added new provisions—such as the ones entitling “applicants” to a statement of reasons when their credit is revoked or modified—that make sense only if “applicant” is understood to include existing borrowers, as stated in Regulation B. Nor has Congress ever amended the statutory definition of “applicant” or otherwise expressed disapproval of the understanding of that term in Regulation B, despite revising the statute multiple times since 1976.
“[W]hen,” as here, “Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the `congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one
Reading “applicant” to protect individuals and businesses from discrimination both during the process of requesting credit and once credit has been extended furthers ECOA's purpose. It prevents a creditor from canceling an existing account because of a borrower's race. It bars a creditor from unfavorably modifying the terms of an existing account—perhaps by lowering the amount available on a line of credit—because of a borrower's national origin. It stops a creditor from requiring women with existing accounts to reapply for their credit upon getting married.
Finally, reading “applicant” in this way—
Those courts that have properly read the term “applicant” in its statutory context, including the only court of appeals to have addressed the issue, have agreed that the statute protects existing borrowers. In
At least one district court has reached the same conclusion. In
The Bureau acknowledges that a few other district court decisions have interpreted “applicant” to include only persons actively seeking credit, but the Bureau does not believe this interpretation is persuasive.
Regulation B has always defined the term “applicant” to include those who applied for and have received credit.
As described above, the best interpretation of ECOA is that the term “applicant” includes existing borrowers. It was thus reasonable for the Board and then the Bureau to adopt that interpretation in Regulation B. Adopting the contrary reading would have led to the serious textual inconsistencies described above and run directly contrary to the statute's purposes. Regulation B's definition avoids those difficulties and, in the process, serves to “carry out” and “effectuate” the purposes of ECOA.
Notably, Regulation B has expressly included existing borrowers as applicants since the rule was first promulgated through notice-and-comment rulemaking in 1975. Indeed, the interpretation of “applicant” discussed here has been confirmed by numerous Federal agencies for decades. For example, nine separate agencies or offices, including the Department of Justice, Federal Trade Commission, and
This advisory opinion is an interpretive rule issued under the Bureau's authority to interpret ECOA and Regulation B, including under section 1022(b)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which authorized guidance as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of Federal consumer financial laws.
By operation of ECOA section 706(e), no provision of ECOA imposing any liability applies to any act done or omitted in good faith in conformity with this interpretive rule, notwithstanding that after such act or omission has occurred, the interpretive rule is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
As an interpretive rule, this rule is exempt from the notice-and-comment rulemaking requirements of the Administrative Procedure Act.
Pursuant to the Congressional Review Act,
Postal Service
Final rule.
The Postal Service is amending
Steven Jarboe at (202) 268-7690, Margaret Pepe (202) 268-3078, or Garry Rodriguez at (202) 268-7281.
This final rule describes new price and product features for competitive products, by class of mail, established by the Governors of the United States Postal Service®. New prices are available under Docket Number CP2022-62 on the Postal Regulatory Commission (PRC) website at
The Postal Service will revise
• Priority Mail®.
• Parcel Select®.
• Return Services.
• Other.
Competitive price and product changes are identified by product as follows:
Currently, Commercial Plus cubic prices are available to Priority Mail customers whose account volumes exceeded 50,000 pieces in the previous calendar year and have a customer commitment agreement with the Postal Service.
The Postal Service is revising the DMM to remove the volume requirements for Priority Mail Commercial Plus Cubic prices. The Postal Service will also eliminate the requirement to have a customer commitment agreement for cubic pricing. Priority Mail cubic prices will now be available to all commercial customers.
The Postal Service is proposing to make the maximum insurance indemnity included with retail and commercial priced Priority Mail limited to a maximum liability of $100.00. See
The Postal Service is implementing cubic pricing under the Parcel Select Ground price category. Parcel Select Ground cubic pricing will be available to eligible Parcel Select Ground customers for rectangular, nonrectangular, and soft pack mailpieces. Each mailpiece must measure 1 cubic foot or less, weigh 20 pounds or less, and the longest dimension may not exceed 18 inches. Cubic-priced mailpieces may not be rolls or tubes. Parcel Select Ground
The Postal Service is proposing to include $100.00 of insurance with Priority Mail Return service pieces. See
Currently, prices for certain subclasses of mail are based on the weight of the individual piece and the distance that the piece travels from origin to destination (
The Postal Service is revising the calculation method for postal zones. The administration of postal zones will be calculated based on the centroid of each 3-digit ZIP Code area or combination of 3-digit ZIP Code areas. Postal zones will now be based on the distance between these units of area. The distance is measured from the centroid of the 3-digit ZIP Code area serving the origin Post Office to the centroid of the 3-digit ZIP Code area serving the destination Post Office. The 3-digit ZIP Code areas serving the origin and destination Post Offices will be determined by using Labeling List L002, Column A.
The Postal Service provides additional resources to assist customers with this price change for competitive products. These tools include price lists, downloadable price files, and
The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR part 111 is amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401-404, 414, 416, 3001-3018, 3201-3220, 3401-3406, 3621, 3622, 3626, 3629, 3631-3633, 3641, 3681-3685, and 5001.
No mailpiece may weigh more than 70 pounds. Lower weight limits apply to parcels mailed at cubic, Regional Rate Box, First-Class Package Service — Commercial, USPS Marketing Mail, Parcel Select Ground Cubic, and Bound Printed Matter prices. * * *
Except for Priority Mail Commercial Plus Cubic Soft Pack under 223.1.4 and Parcel Select Ground Cubic Soft Pack under 253., parcels prepared in soft packaging (poly, plastic, cloth, padded envelopes, or similar soft packaging) are measured to determine the dimensions (length, width, height) as follows:
The maximum weight is 70 pounds. Lower weight limits apply to parcels mailed at cubic (20 pounds); Regional Rate “Box A” (15 pounds); and Regional Rate “Box B” (20 pounds) prices. The combined length and girth of a piece (the length of its longest side plus the distance around its thickest part) may not exceed 108 inches. Lower size limits apply to parcels mailed at Flat Rate, Regional Rate, and cubic prices. Lower weight and size standards apply for some APO/FPO and DPO mail subject to 703.2.0, and 703.4.0, and for Department of State mail subject to 703.3.0.
Priority Mail pieces claiming the cubic price must be marked “Priority Mail” and bear the applicable marking that reflects the correct price tier printed on the piece or produced as part of the postage indicia. * * *
Parcel Select Ground pieces claiming the cubic price must be marked “Parcel Select Ground” and bear the applicable marking that reflects the correct price tier printed on the piece or produced as part of the postage indicia. The cubic tiers are determined by the cubic measurement of each mailpiece up to the defined threshold, (for example, measurements from .01 up to .10 for “Cubic .10” and from .101 up to .20 for “Cubic .20”). Place the marking directly above, directly below, or to the left of the postage. Approved markings are as follows:
a. “Cubic .10”
b. “Cubic .20”
c. “Cubic .30”
d. “Cubic .40”
e. “Cubic .50”
f. “Cubic .60”
g. “Cubic .70”
h. “Cubic .80”
i. “Cubic .90”
j. “Cubic 1.00”
Parcel Select Ground permit imprint pieces claiming the cubic price must be marked “Parcel Select Ground” and bear the “cubic” marking printed on the piece or produced as part of the permit imprint indicia. Place the marking directly above, directly below, or to the left of the postage. The approved marking is “Cubic” (or “CUBIC,” or “cubic”).
Regardless of the postage payment method used, soft pack and padded envelopes must be marked “Parcel Select Ground” in addition to the tier price markings in 3.8.1 and the dimensions (length and width) of the original packaging. Place the markings directly above, directly below, or to the left of the postage.
The following price applications apply:
a. Except Commercial Plus items weighing up to 0.5 pound (see 1.1c) and cubic items (see 1.1d), Priority Mail mailpieces are charged per pound; any fraction of a pound is rounded up to the next whole pound. * * *
d. Cubic prices are not based on weight, but are charged by zone and cubic measurement of the mailpiece with any fraction of a measurement rounded down to the nearest
Cubic prices are generally available to commercial Priority Mail customers. Each mailpiece must measure .50 cubic foot or less, weigh 20 pounds or less, and the longest dimension may not exceed 18 inches. Cubic-priced mailpieces may not be rolls or tubes.
* * * Lower weight limits apply to cubic pieces (see 1.4); Regional Rate Boxes (see 1.8); APO/FPO mail subject to 703.2.0 and 703.4.0 and Department of State mail subject to 703.3.0.
Cubic mailpieces for multiple price tiers may be combined in the same container.
For prices, see Notice 123—Price List.
The price categories for Parcel Select are as follows:
a. Destination Entry, including destination entry network distribution center (DNDC), destination entry sectional center facility (DSCF), and destination entry delivery unit (DDU).
b. Ground, including Ground Cubic.
c. Lightweight.
d. USPS Connect Local.
The following price applications apply:
a. Prices for Destination Entry DNDC and Ground are based on the weight increment of each addressed piece, and on the zone to which the piece is addressed. The price is charged per pound or fraction thereof; any fraction of a pound is considered a whole pound. The minimum price per piece is the 1-pound price.
b. Prices for Destination Entry DDU and DSCF, and USPS Connect Local are based on the weight increment of each addressed piece. The price is charged per pound or fraction thereof; any fraction of a pound is considered a whole pound. The minimum price per piece is the 1-pound price.
c. Prices for USPS Connect Local Flat Rate packaging are based on a flat rate regardless of domestic destination and the actual weight (up to 25 pounds) of the mailpiece.
d. Prices for Ground Cubic are based on the zone and cubic measurement of the mailpiece with any fraction of a measurement rounded down to the nearest
e. Prices for Parcel Select Lightweight are based on the weight increment and entry of each addressed piece. The price is charged per ounce or fraction thereof, with any fraction of an ounce being rounded to the next whole ounce. The minimum price per piece is the 1-ounce price.
Cubic prices are available to eligible Parcel Select Ground customers including Ground Return Service under 505.3.0. Each mailpiece must measure 1 cubic foot or less, weigh 20 pounds or less, and the longest dimension may not exceed 18 inches. Cubic-priced mailpieces may not be rolls or tubes.
Cubic prices consist of the following ten tiers:
a. Tier 0.10—mailpieces measuring up to .10 cubic foot
b. Tier 0.20—mailpieces measuring more than .10 up to .20 cubic foot
c. Tier 0.30—mailpieces measuring more than .20 up to .30 cubic foot
d. Tier 0.40—mailpieces measuring more than .30 up to .40 cubic foot
e. Tier 0.50—mailpieces measuring more than .40 up to .50 cubic foot
f. Tier 0.60—mailpieces measuring more than .50 up to .60 cubic foot
g. Tier 0.70—mailpieces measuring more than .60 up to .70 cubic foot
h. Tier 0.80—mailpieces measuring more than .70 up to .80 cubic foot
i. Tier 0.90—mailpieces measuring more than .80 up to .90 cubic foot
j. Tier 1.00—mailpieces measuring more than .90 up to 1.00 cubic foot
Follow these steps to determine the cubic tier measurement for rectangular and nonrectangular parcels:
a. Measure the length, width, and height at each dimension's maximum point, in inches. Round down (see 604.7.0) each measurement to the nearest
b. Multiply the length by the width by the height and divide by 1728. For example: 6″ × 5
Cubic tier measurements for soft pack (poly, plastic, cloth, or similar soft packaging) and padded envelopes are based on the outside dimensions of length plus width, in inches, of the original packaging material. Mailpieces that are pleated (
a. Measure the length and width separately in inches.
b. Round down (see 604.7.0) each measurement to the nearest
c. Add the two measurements together. The maximum total of length plus width cannot exceed 36 inches. See Exhibit 1.2.4 for corresponding price tiers.
To qualify for Parcel Select Ground prices including Parcel Select Ground cubic, mailings must meet one of the following volume thresholds:
Parcel Select destination entry and ground postage (including cubic) may be paid as follows:
Cubic mailpieces for multiple price tiers may be combined in the same container.
Postal prices for certain subclasses of mail are based on the weight of the individual piece and the distance that the piece travels from origin to destination (
Zones are used to compute postage on zoned mail sent between 3-digit ZIP Codes areas, including military Post Offices (MPOs), as follows:
a. For the purposes of computing postal zone information, except for items 9.2b and 9.2c, the following table applies to MPOs listed in L002, Column A.
Nonlocal zones are defined as follows:
a. The zone 1 price applies to pieces not eligible for the local zone in 9.4.1 that are mailed between two Post Offices with the same 3-digit ZIP Code prefix identified in L002, Column A. Zone 1 includes all units of area outside the local zone lying in whole or in part within a radius of about 50 miles from the center of the area.
Environmental Protection Agency (EPA).
Direct final rule.
With this direct final rule, the Environmental Protection Agency (EPA or the “Agency”) is promulgating approval of revisions to the South Dakota operating permit program for stationary sources under Clean Air Act (CAA) title V (the “title V program”), a Clean Air Act (CAA) section 111(d)/129 negative declaration for incinerators subject to the Hospital/Medical/Infectious Waste Incinerators (HMIWI) Emissions Guidelines, and making administrative updates. EPA is taking this final action in accordance with the CAA.
This direct final rule is effective on July 18, 2022 without further notice, unless EPA receives adverse written comments on or before June 17, 2022. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2021-0732. All documents in the docket are listed in the
Carson Coate, Air and Radiation Division, EPA, Region 8, Mail code 8ARD, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, telephone number: (406) 457-5042, email address:
Throughout this document “we,” “us,” and “our” means EPA.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, elsewhere in this issue of the
If EPA receives adverse comments, EPA will publish a timely withdrawal in the
Title V of the CAA as amended (42 U.S.C. 7401
Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emissions guidelines for such existing sources.
The regulations at 40 CFR part 60, subpart B (Subpart B), contain general provisions applicable to the adoption and submittal of state plans for controlling designated pollutants. Additionally, 40 CFR part 62, subpart A, provides the procedural framework by which EPA will approve or disapprove such plans submitted by a state. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect (
EPA promulgated the HMIWI NSPS and emissions guidelines in 1997 and 2009. The emissions guidelines are codified at 40 CFR part 60, subpart Ce. Thus, states were required to submit plans for incinerators subject to the HMIWI emissions guidelines pursuant to sections 111(d) and 129 of the Act and Subpart B or negative declarations pursuant to 40 CFR 60.23(b) and 62.06.
On January 3, 2020, in accordance with 40 CFR 70.4(i), South Dakota submitted a request for approval of title V program revisions to incorporate updated federal regulations through July 1, 2018, thereby aligning state rules in South Dakota's Administrative Rules of South Dakota (ARSD) with federal rules at 40 CFR part 70.
On June 7, 2021, South Dakota submitted a negative declaration for the HMIWI emissions guidelines in accordance with CAA sections 111(d) and 129 and 40 CFR 60.23(b) and 62.06. The negative declaration certified that no incinerators subject to the HMIWI emissions guidelines and the requirements of sections 111(d) and 129 of the CAA exist in South Dakota. Specifically, South Dakota had one facility, located at the University of South Dakota, that was considered a co-fired combustor under the HMIWI NSPS. The University of South Dakota disconnected the natural gas supply line to the incinerator in 2012 and requested that the incinerator be removed from its title V air quality operating permit in 2019.
On April 16, 2021, South Dakota's Office of Attorney General submitted a letter notifying EPA of the establishment of the South Dakota Department of Agriculture and Natural Resources (DANR). The letter stated that on January 19, 2021, South Dakota Governor, Kristi Noem, executed Executive Order 2021-03, which provided for the merger of the South Dakota Department of Agriculture (DOA) and the South Dakota Department of Environment and Natural Resources (DENR) into one department—the DANR. According to the South Dakota Constitution, executive reorganization orders become effective “within ninety days after submission” of the executive order to the South Dakota Legislature (Legislature) unless one of the two houses of the Legislature disapproves of the executive reorganization (S.D. Constitution, Article IV, Section 8).
In the April 16, 2021 letter, Assistant Attorney General Steven R. Blair stated that all State programs previously authorized to carry out EPA programs would continue to function in the same manner and all current environmental protection activities conducted under existing EPA approved or delegated programs under the DOA and/or the DENR would continue intact under the newly established DANR. Further, Mr. Blair stated that the merger caused no substantive budgetary or personnel changes, that the new DANR has all the authorities, powers, and duties of the previous DOA and DENR, and that the laws in effect at the time EPA approved or delegated authority to DOA and/or DENR continue to be fully effective and enforceable. Mr. Blair explained that the merger did not require any substantive changes to state law or administrative rules; the statutes and rules were merely updated to reflect the name of the new department.
In a January 20, 2022 letter, the Secretary of the DANR, Hunter Roberts (the Governor's designee), submitted a request that EPA recognize the merger of South Dakota's DOA with the DENR to form the new DANR and incorporate corresponding revisions to the ARSD related to South Dakota's state implementation plan (SIP). Secretary Roberts stated that the ARSD provisions were automatically updated with the DANR's new name during the merger process. Additionally, Secretary Roberts stated that South Dakota's Board of Minerals and Environment approved the DANR's request to ask EPA to recognize the department's new name in South Dakota's SIP during a public hearing on December 16, 2021. Secretary Roberts further confirmed that the merger did not cause a substantive change to state law or administrative rules and that DANR maintains the same authorities, powers, and duties covered and
South Dakota submitted the necessary information for EPA to review the title V program revisions, the 111(d) negative declaration, and the non-substantive revisions to South Dakota's ARSD to reflect the merger of South Dakota's DOA with the DENR to form the new DANR. EPA is now acting to fully approve South Dakota's January 3, 2020 and January 20, 2022 title V program revisions under 40 CFR 70.4(i). Specifically, we are approving changes to ARSD 74:36:05:04(2) and (3), 74:36:05:16.01(4), (8), (9), (17) and (18), and 74:36:13:08 so that they align with federal regulations promulgated through July 1, 2018.
In addition, we are approving the department name change to the DANR in South Dakota's title V program fees rule at ARSD 74:37:01:08. In its SIP submittal dated January 20, 2022, South Dakota inadvertently included this non-SIP provision. In a March 4, 2022 email, Kyrik Rombough, South Dakota's State Air Director, confirmed that ARSD 74:37:01:08 contains the fee provision for the State's title V operating permit program and should be included in the update to the title V program.
EPA is also approving South Dakota's June 7, 2021 negative declaration certifying that no incinerators subject to the HMIWI emissions guidelines and the requirements of sections 111(d) and 129 of the CAA exist in South Dakota per CAA sections 111(d) and 129 and 40 CFR 60.23(b) and 62.06. We are also updating 40 CFR part 62, subpart QQ, and 40 CFR part 62, subpart A. The negative declaration fulfills South Dakota's obligations under CAA sections 111(d) and 129. The submittal of this negative declaration exempts South Dakota from the requirement to submit a state plan for incinerators subject to the HMIWI emissions guidelines under 40 CFR part 60, subpart Ce.
EPA is also changing “Department of Environment and Natural Resources” to “Department of Agriculture and Natural Resources” in 40 CFR 60.4(b)(43) and changing “Department of Water and Natural Resources” to “Department of Agriculture and Natural Resources” in 61.04(b)(43). These are non-substantive, administrative changes that reflect DANR's new name.
Under the CAA, the Administrator is required to approve a state title V program submittal that complies with the provisions of the Act and applicable federal regulations; 40 CFR 70.4(i). Thus, in reviewing title V program submittals, EPA's role is to approve state choices, provided they meet the criteria of the CAA and the criteria, standards and procedures defined in 40 CFR part 70. The Administrator is also required by the CAA to approve a CAA section 111(d)/129 submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, subparts B and Ce; and 40 CFR part 62, subpart A. Accordingly, this action merely approves state law as meeting Federal requirements beyond those imposed by state law.
For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this action is not approved to apply in Indian country, as defined at 18 U.S.C. 1151, or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. As such, this 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 July 18, 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, Administrative practice and procedure,
Environmental protection, Administrative practice and procedure, Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous substances, Intergovernmental relations, Mercury, Radioactive materials, Radon, Reporting and recordkeeping requirements, Uranium, Vinyl chloride.
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Industrial facilities, Intergovernmental relations, Methane, Ozone, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds, Waste treatment and disposal.
Environmental protection, Air pollution control, Intergovernmental relations, Title V.
40 CFR parts 60, 61, 62 and 70 are amended as follows:
42 U.S.C. 7401
(b) * * *
(43) State of South Dakota, Air Quality Program, Department of Agriculture and Natural Resources, Joe Foss Building, 523 East Capitol, Pierre, SD 57501-3181.
42 U.S.C. 7401
(b) * * *
(43) State of South Dakota, Department of Agriculture and Natural Resources, Air Quality Program, Joe Foss Building, 523 East Capitol, Pierre, SD 57501-3181.
42 U.S.C. 7401
The State of South Dakota submitted a letter on June 7, 2021, certifying that there are no designated facilities subject to the emissions guidelines for existing hospital medical infectious waste incinerators under 40 CFR part 60, subpart Ce, operating within the State's jurisdiction.
The authority citation for part 70 continues to read as follows:
42 U.S.C. 7401,
(a) South Dakota Department of Agriculture and Natural Resources: Submitted on November 12, 1993; full approval effective on February 28, 1996.
(d) The State of South Dakota submitted operating permit program revisions on January 3, 2020 and January 22, 2022. On January 3, 2020, South Dakota submitted for program approval revisions to the Administrative Rules of South Dakota, Chapters 74:36:05:04(2), 74:36:05:04(3), 74:36:05:16.01(4), 74:36:05:16.01(8), 74:36:05:16.01(9), 74:36:05:16.01(17), 74:36:05:16.01(18), and 74:36:13:08. The state effective date of these revisions is November 25, 2019. On January 22, 2022, South Dakota submitted for program approval revisions to Administrative Rules of South Dakota, Chapter 74:37:01:08. The state effective date is April 19, 2021. The revisions are effective on July 18, 2022.
Federal Communications Commission.
Final order; Alaska Plan.
In the document, the Wireless Telecommunications Bureau (Bureau) of the Federal Communications Commission (Commission) adopts the drive test parameters and a drive test model required of two Alaska Plan mobile-provider participants: GCI Communication Corp (GCI) and Copper Valley Wireless (CVW). The Bureau also requests comment on requiring these mobile providers to submit new drive-test data if they fail to demonstrate compliance with their approved performance plan.
The Order is adopted and effective on June 17, 2022.
For additional information on this proceeding, contact Matthew Warner of the Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division,
This is a summary of the “Order” portion of the Bureau's Alaska Plan Drive Test Order and Request for Comment, adopted on May 5, 2022, and released on May 5. 2022. The “Request for Comments” portion is published elsewhere in this issue of the
1. In the Order portion of this document, the Wireless Telecommunications Bureau (Bureau) adopts a drive-test model and parameters for the drive tests that are required of certain mobile providers participating in the Alaska Plan. The Bureau will use these drive-test data to determine whether mobile providers that receive more than $5 million in annual support for the deployment of mobile voice and broadband service in remote areas of Alaska have met their performance commitments. In the Request for Comment portion of the document, we seek comment on a proposal to require mobile-provider participants subject to the drive-test requirement to submit new drive-test data consistent with the drive-test model and parameters if they fail to meet a buildout milestone and later seek to cure a compliance gap.
2. Unique circumstances in Alaska make deploying communications infrastructure particularly challenging in that state. In the 2016 Alaska Plan Order, the Commission adopted an Alaska-specific, 10-year universal service plan to address these unique circumstances. The Alaska Plan Order froze mobile-wireless service-provider participants' preexisting support at December 2014 levels (frozen support) and sought to have those providers commit to expand Fourth-Generation, Long-Term Evolution (4G LTE) service at speeds of at least 10/1 Mbps in eligible areas, subject to certain exceptions (such as where middle-mile infrastructure capability is limited). In areas with limited middle-mile infrastructure, providers were allowed to make a lesser commitment until better middle-mile infrastructure became available.
3. Provider Commitments. Eight mobile providers chose to participate in the Alaska Plan and submitted for Bureau approval performance plans in which they committed to provide mobile voice and broadband services to delineated populations in remote eligible areas of Alaska. Providers, as part of their performance plans, were required to identify both the last-mile mobile technology (
4. Each participating mobile provider committed to meet buildout requirements at the end of year five (ending December 31, 2021) and year 10 (ending December 31, 2026) of the Alaska Plan and to certify that it met the obligations contained in the performance plan at each of these buildout milestones. The Commission stated that it would rely on participating providers' FCC Form 477 data—which report inter alia mobile wireless broadband coverage by technology and minimum advertised or expected speed—in determining whether the providers' five-year and 10-year milestones have been met. The Commission delegated authority to the Bureau to require additional information necessary to establish clear standards for determining whether providers have met their five and 10-year commitments.
5. Drive Tests. Mobile participants that receive more than $5 million annually in Alaska Plan support must accompany their milestone certifications with drive-test data. The drive-test data must show mobile transmissions to and from the network that meet or exceed the minimum speeds set out in the approved performance plans in the areas where support was received. The Alaska Plan Order specifies that these participants “may demonstrate coverage of an area with a statistically significant number of tests in the vicinity of residences being covered.” Given the unique terrain and lack of road networks in remote Alaska, providers may conduct drive tests by means other than automobiles (such as snow-mobiles or other vehicles appropriate to local conditions). Two of the eight mobile participants—GCI Communications Corp. (GCI) and Copper Valley Wireless (CVW)—exceed the $5 million annual support threshold, and accordingly, they must provide drive-test data supporting the speed certifications consistent with their performance plan commitments.
6. Alaska Drive-Test Parameters and Model. In the Alaska Drive Test Public Notice, the Bureau proposed a model for conducting the drive testing (Alaska Drive-Test Model), which included the drive-test information to be submitted and the format in which it should be submitted. The parameters proposed in the Notice included, for example, the submission of latitude and longitude coordinates to identify the location of the test, a timestamp for the time the test was taken, the type of device and related software used for the test, last-mile technology tested, and recorded download and upload speeds.
7. The proposed Alaska Drive-Test Model was designed to ensure that the service providers required to conduct drive testing would obtain a “statistically significant number of tests in the vicinity of residences being covered.” The proposed Alaska Drive-Test Model uses stratified random sampling to determine test locations within a grid system based on the service provider's reported coverage area. Under the proposal, the Commission would begin with the populated areas contained in the performance plans for each type of technology and backhaul and then overlay a one-square kilometer grid system to create a frame around the covered populated area corresponding with the performance commitments. Staff would then stratify the frame into sets of grids determined by statistical formulae based on theoretical population of the grid cells (
8. The Bureau sought comment on the parameters and proposed Alaska Drive-Test Model and on any alternatives that it should consider. GCI filed comments, and both GCI and CVW made ex parte presentations to staff about the proposed Alaska Drive-Test Model. No other party filed comments or made such presentations. Based on concerns that were expressed about the initial deadline, the Bureau extended the drive-test data-submission deadline, moving it from March 1, 2022 to September 30, 2022. The Commission will continue to monitor the situation and will remain flexible where warranted.
9. We adopt the proposed parameters and the proposed Alaska Drive-Test Model with the modifications specified below. We will use data derived from these parameters, combined with FCC Form 477 coverage data and complementary middle-mile data, to verify that covered service providers have met their commitments. Upon submission of the drive test data that we discuss in this Order, a corporate officer of the mobile-provider participant must certify to the data's accuracy, consistent with the obligations of 47 CFR 54.321(a). When submitting the drive test data, a corporate officer of the mobile-provider participant must submit this certification: “I certify that I am an officer of the reporting carrier; my responsibilities include ensuring the accuracy of certifications which are required to be reported pursuant to 47 CFR 54.321(a). The reporting carrier certifies that the data received or used from drive tests analyzing network coverage for mobile service pursuant to 47 CFR 54.321(a) are complete, accurate, and free from misrepresentation.” The Commission staff will provide details to GCI and CVW on how to submit the drive test data.
10. We adopt a modified version of the drive-test parameters proposed in the Alaska Drive Test Public Notice (attached as Appendix A). These parameters specify the categories of data to be collected as well as the data structure and format in which the data must be reported. In addition to the parameters the Bureau proposed, the Bureau adopts other changes to the parameters; most notably, we have altered the parameters in Appendix A with respect to the data to be collected for 2G/Voice. In the Notice, the Bureau proposed that, for 2G, a data rate of 22.8 kbps or higher for download and upload tests would be appropriate because that should be a minimally sufficient speed to provide a serviceable voice call. GCI expressed concern that speed-test data would not accurately represent the ability to place a voice call over a 2G network, particularly for non-GSM standards such as CDMA or UMTS. GCI proposed that, instead, providers demonstrate voice coverage by placing voice calls between five and 30 seconds in duration to a telephone number established for test calls.
11. We find GCI's suggestion to be a reasonable approach, and therefore we will require it instead of the approach we proposed in the Notice. Because GCI is the only provider subject to drive testing that has a 2G commitment and GCI's particular 2G requirement is voice only, we agree with GCI that a test assessing the availability of voice service would be appropriate. Accordingly, GCI must use voice calls to demonstrate its “Voice/2G” coverage in areas that it is required to drive test, and Appendix A now includes parameters for voice-only testing. This change from the original proposal enables GCI to enter information that records a successful call completion using 2G technology, regardless of data rate, consistent with the voice-only commitment. The new fields for GCI's voice-only testing are the voice originating, voice terminating, rxlev, and rxqual fields. The voice originating field is a field for providing information for outbound calling and the voice terminating field is for receiving inbound calls for the testing. The rxlev and rxqual fields represent data elements that are necessary to determine the signal quality and strength and corresponding quality of the network for voice calls.
12. We also adopt other modifications to the proposed data specifications for mobile speed tests. As set forth in more detail in Appendix A, we modify the proposed data specifications to add new drive-test parameters within existing categories—specifically, device Type Allocation Code (TAC), warmup duration, warmup bytes transferred, spectrum band, and success flag. Most of the parameters that we altered—device TAC, warmup duration, warmup bytes transferred, and spectrum band—resulted from the Bureau's experience constructing the Broadband Data Collection but will also aid understanding of the data derived from the Alaska Plan drive tests. The device TAC provides the type of device used in the testing and helps us better understand the results, particularly if results indicate a problem with a network that may be attributable to the type of device. The warmup bytes and duration are the bits recorded during the testing ramp-up time, and collecting ramp-up bits as a separate field is required to ensure we are accurately measuring the network's maximum transmission data rate. The spectrum band records the spectrum band or bands utilized during the drive test, which can affect wireless performance. Finally, because the drive tests need to exceed the minimum commitments in the mobile-provider participants' performance plans, the success flag field was added to record where the data indicate that the tests were successful to that end (or not).
13. We adopt the proposed Alaska Drive-Test Model (attached as Appendix B), with limited clarifications and modifications. The Alaska Drive-Test Model uses a stratified random sample of a frame. A frame consists of the complete set of units within a commitment eligible to be sampled, which for the purposes of the Alaska Plan drive testing are one-square kilometer grids in which a provider has at least 100,000 square meters of covered populated area. The construction of this frame is a multi-part process. First, we will create a set of “eligible populated areas.” Census blocks eligible for frozen-support funding would be included, and these census blocks would be merged with the populated areas of the Alaska Population-Distribution Model. Second, staff will merge the FCC Form 477 reported coverage areas (for which a provider committed to deploy and that are subject to testing) with the eligible populated areas to create a set of “covered populated areas.” Third, Commission staff will overlay a grid of 1 km x 1 km squares onto the covered populated areas. Lastly, any grid cell that contains fewer than 100,000 square meters of covered populated area, or 10% of the grid cell, will be excluded from the frame.
14. The frame is divided into subsets of similar characteristics, called strata. This methodology allows fewer grid cells to be selected for testing while producing a statistically equivalent level of accuracy as sampling the entire frame, thus reducing the burden of testing. We will use the cumulative square root of the frequency (CSRF) method to define the breaks between strata based on a scale along the cumulated square root of the frequency of grid cells belonging to equal intervals of the stratification variable. Using the CSRF method will help to ensure that
15. Frames are based on providers' commitments. In particular, Commission staff will create separate frames where a provider committed to different speeds based on different middle-mile or last-mile technologies in its Bureau-approved performance plan. CVW is subject to one frame because it committed to 10/3 Mbps 4G LTE in all of the areas where it receives Alaska Plan support. GCI is subject to five frames, as GCI committed to five different speeds based on various combinations of middle-mile and last-mile technologies:
• Fiber-based 4G LTE at a minimum speed of 10/1 Mbps;
• Microwave-based 4G LTE at a minimum speed of 2/.8 Mbps;
• Satellite-based 4G LTE at a minimum speed of 1/.256 Mbps;
• 3G or better at a minimum speed of .2/.05 Mbps; and
• Voice/2G.
16. GCI argues that, instead of basing frames on middle-mile and last-mile technologies, we should assign frames based only on the speeds a provider reports via its FCC Form 477 filings. GCI asserts that a speed-only approach better reflects the intent of the Alaska Plan Order and that the Commission intended to use information about middle-mile and last-mile technologies only to determine whether mobile carriers' proposed speed commitments were reasonable. Pointing to language in the Alaska Plan Order, which states that drive tests must show mobile transmissions that meet or exceed “the speeds delineated in the approved performance plans,” GCI contends that the Bureau's drive-test proposal “changes the yardstick by which providers will be measured.”
17. We disagree. The Alaska Drive-Test Model's integration of middle-mile and last-mile technologies is consistent with the Alaska Plan Order, the Commission's rules, the provider performance plans that the Bureau approved, and the policy undergirding the Alaska Plan. In 2016, the Commission sought to advance, to the extent possible, the number of locations in Alaska that have access to at least 10/1 Mbps 4G LTE. It permitted the Bureau to approve lesser commitments “in particular circumstances” if a provider's ability to achieve 10/1 Mbps 4G LTE was limited, for example, by a lack of access to middle-mile infrastructure. In areas where such limitations did not exist, providers were expected to extend 4G LTE service, which was the latest mass-market technology available at the time the Commission adopted the Alaska Plan. Additionally, if backhaul becomes newly available in an area where a provider has not committed to provide 10/1 Mbps 4G LTE, then that provider must submit revised commitments that take into account the new backhaul option. While GCI argues that the Commission only intended to use information about middle-mile and last-mile technologies to determine whether mobile providers' proposed speed commitments were reasonable, GCI does not address how the Commission could determine whether a mobile provider has met those commitments without also collecting information about its speeds for each specified technology and middle-mile facility.
18. Contrary to GCI's assertions, we have not “change[d] the yardstick by which providers will be measured.” To implement the framework described above, the Commission required providers to identify in their performance plans the populations that they proposed to cover at the five- and 10-year milestones, “broken down for each type of middle mile, and within each type of middle mile, for each level of data service offered.” This approach is mirrored in the Commission's rules, which require mobile providers to build out to the “population covered by the specified technology, middle mile, and speed of service in the carrier's approved performance plan, by the interim milestone.” In addition, every performance plan that providers submitted and the Bureau approved—including GCI's original plan and updated plans—identifies the providers' speed commitments based on available middle- and last-mile technology employed.
19. The Alaska Drive-Test Model, by taking into account middle- and last-mile technologies, will allow CVW and GCI to show that they have met the speed commitments delineated in their approved performance plans. While GCI is correct that the drive-test data will demonstrate network throughput (
20. Moreover, failing to account for last-mile and middle-mile technologies in the Alaska Drive-Test Model could allow participants to skirt their commitments. For example, speed tests conducted in close proximity to a tower providing 3G service using microwave backhaul could produce test results of 10/1 Mbps or better. If that grid cell's population is credited toward a provider's fiber-fed 4G LTE performance obligation, this would offset the need for the provider to demonstrate 10/1 Mbps 4G LTE service in another area that should otherwise receive this level of service based on fiber-based middle-mile facilities.
21. Finally, we note that, under the Alaska Plan, approval of a provider's plan to maintain lower levels of technology “in particular circumstances . . . to a subset of locations” is limited to those locations; it is not a fungible token to provide lower levels of service anywhere in the provider's service area. In other words, a provider may not underperform in areas where it committed to 10/1 Mbps 4G LTE, even if it overperforms in areas where it was allowed a lesser commitment due to “unique limitations” in those areas. To the extent “unique limitations” no longer prevent a provider from achieving 10/1 Mbps 4G LTE in an area, the appropriate course of action would be for the provider to update its performance plan, as required under the terms of the Alaska Plan Order.
22. Some parts of remote Alaska lack any roads, and some large areas have a low population density. Nonetheless, providers committed to serve many of these areas, and they receive support from the Alaska Plan to do so. As discussed further below, we cannot ignore these areas when evaluating CVW's and GCI's performance commitments, and thus we find it necessary to include in the testing sample grid cells with no roads as well as grid cells with low populations,
23. We acknowledge that remote Alaska has unique challenges, including roadless areas, and these unique challenges are the reason the Commission created a separate universal service support mechanism for Alaska. Some of the roadless remote areas, however, are in the vicinity of covered residences and must be tested to achieve statistically significant testing of each provider's coverage sufficient to enable the Bureau to determine whether a provider has satisfied its commitments. A quality communications network is all the more essential where the local population lacks roads, and to the extent that providers have received universal service support to cover such populated areas, they are required to demonstrate their claimed coverage.
24. We also find it necessary to include in the testing sample grid cells with a modeled population of less than one person—including such grid cells with no roads—consistent with the Alaska Plan Order and our proposals in the Alaska Drive Test Public Notice. Providers committed to cover delineated eligible populations in their performance plans, including some areas that are sparsely populated. While providers only test populated areas, in some instances, the number of grid cells within the populated area of a census block can outnumber the people. Where the aggregate number of grid cells in a covered populated area exceed the number of people in that area, such grid cells will appear to have less than one person. However, to “demonstrate coverage of an area with a statistically significant number of tests in the vicinity of residences being covered,” these areas are necessary to test as part of the coverage that the provider committed to and receives support to provide mobile service.
25. GCI argues that it should not be required to test sparsely populated grid cells, and both GCI and CVW express concern that testing in grid cells with no roads will be extremely difficult. But the Alaska Drive-Test Model has design features that should help address concerns about these grid cells. The model stratifies each frame using CSRF based on grid-level estimates of covered population. This includes creating a single stratum within each frame of all grid cells with a population of less than one person. Further, the sample is apportioned across a frame using Neyman allocation, a technique that draws more samples from more highly populated strata relative to lower populated strata. Accordingly, the stratum containing grid cells with a population of one person or more will have a greater number of grid cells compared to strata containing grid cells of population less than one, and more samples will be drawn from the higher populated strata. This has a compounding effect that limits the number of grid cells with a population less than one that will be selected for testing. In addition, the Alaska Population-Distribution Model distributes population near roadways for census blocks that contain roads, making it more likely that areas near roads will be covered populated areas and selected for testing.
26. GCI claims that many testable grid cells are too sparsely populated for worthwhile testing. GCI's analysis of the Alaska Drive-Test Model claims that 53% of the grid cells would have less than one person and that based on GCI's analysis, 48% of grid cells would have less than one person per grid cell and no roads. GCI argues that grid cells with less than one person should be eliminated from testing and grid cells with no roads should be required sparingly, given the burdens of conducting drive testing. Similarly, CVW notes that some grid cells would be inaccessible mountains or islands with no public access. GCI evaluated the grid cells in its coverage areas and determined that 59% of the grid cells would have no roads, that 49% of the grid cells would be more than a mile from the nearest road, and that 12% of the grid cells would be more than ten miles from the nearest road.
27. GCI has not presented its data or the methodology underlying its calculations, and we were not able to reproduce it. However, for several reasons, we believe that GCI's calculations result in significant over-estimates. First, the Alaska Drive-Test Model's de minimis population standard has the effect of reducing the number of grid cells without roads that would otherwise be included in the testing frame. Second, as noted above, we designed the sample and stratification so that there would be substantially more grid cells that are populated compared with grid cells with population less than one in the sampling methodology to increase the probability that a populated grid cell would be selected for testing compared with a grid cell with population less than one. Third, because there is a high correlation between populated grid cells and grid cells with roads, our sampling methodology should not only increase the percentage of populated grid cells that are tested but also increase the percentage of tested grid cells that have roads. Accordingly, for all of these reasons, we believe that GCI's calculations result in over-estimates.
28. We also disagree with GCI that the burdens of testing in these areas outweigh the benefits of testing in areas where GCI is receiving universal service support. If we excluded such grid cells in the sampling, GCI would continue to receive Alaska Plan support in remote areas of Alaska without adequate means to verify coverage, which runs contrary to the principles outlined in the Alaska Plan Order. Low population density and areas with no roads are features in many parts of remote Alaska—a fact of which CVW and GCI were aware when they elected to participate in the Alaska Plan—yet these providers nonetheless committed to covering these remote areas using universal service support. For these reasons, we decline to eliminate testing for grid cells with no roads, including those grid cells with a population of less than one. Although CVW and GCI must drive test some grid cells that do not have roads, the Commission foresaw this potential issue and accounted for it by allowing drive tests to be conducted “by means other than in automobiles on roads.” We provide further relief for the providers by allowing use of unmanned aircraft systems (UASs), subject to the waivers we describe below.
29. For the reasons described above, we find it necessary to require testing of grid cells with no roads and population of one or greater. To the extent a grid cell with a population of one or greater does not include an accessible road, the accommodation to use off-road vehicles should improve testability. If there are instances where a mobile-provider participant claims that it cannot use on-the-ground, off-road vehicles to test such a grid cell, it may seek a waiver from the Bureau to use a UAS to test that particular grid cell. This waiver request should provide a statement regarding why good cause exists to waive the on-the-ground testing requirement for that grid cell, contain evidence supporting that claim, and be filed in WC Docket No. 16-271. UASs should mirror on-the-ground vehicles to the extent possible, matching on-the-
30. To the extent that a mobile provider seeks to use UASs to conduct testing, it may do so if the allocation and service rules permit airborne use of the spectrum that will be used to provide the mobile service to be tested as part of the drive tests. Otherwise, the provider must additionally obtain a waiver from the Commission (pursuant to Section 1.925) of any airborne limitations.
31. For the reasons described above, we also find it necessary to require testing of certain grid cells with no roads and population of less than one. However, as an alternative to testing with an automobile or other terrestrial off-road vehicle (
32. GCI expresses concern that the number of “communities” that it needs to travel to is the biggest driver of its testing costs. GCI notes that there are 205 communities within its footprint and that, while GCI may be able to drive to some communities, “given the distances between communities and the lack of interconnected roads, [GCI's testing teams must] often [travel to these communities] by small aircraft.” To the extent GCI has to charter a flight to many of these communities, this would increase the costs and complexities associated with drive testing all of its assigned grid cells.
33. To help reduce the burdens of traveling to many different communities, we have added an optimization to the sampling process that will likely reduce the number of incorporated and census designated places where GCI and CVW would have to travel. Given that GCI did not provide a definition of “communities,” we believe incorporated and census designated places are the closest proxy, as there are 284 incorporated and census designated places in GCI's footprint, and incorporated and census designated places are integrated into census data, which are used throughout this modeling. We implement these additional steps in direct response to GCI's concerns and describe this additional process in Appendix B, infra.
34. We adopt the proposal to require at least 50% of drive tests to be conducted while in motion. Requiring that 50% of the drive tests be conducted while in motion strikes a balance of ensuring that the drive tests are a sufficient representation of how consumers use their mobile devices, which is both in a stationary and in-motion environment. Requiring some in-motion tests also helps ensure that tests are conducted in multiple locations within the grid cell.
35. We disagree with GCI that the proposed in-motion requirement is unnecessary. The Alaska Plan Order referred to these as “drive tests,” which suggests some degree of motion consistent with a driving experience. The drive testing data to be submitted is to “show[ ] mobile transmissions to and from the network meeting or exceeding the speeds delineated in the approved performance plans.” Mobile service, as defined in the Communications Act and the Commission's rules, supports an in-motion requirement for at least some drive tests. Moreover, requiring drive tests in motion is also consistent with the in-vehicle mobile propagation modeling that mobile broadband service providers must submit as part of the Broadband Data Collection, which providers could verify through on-the-ground data submitted in response to cognizable challenges and/or verification inquiries initiated by Commission staff. The Commission also explained for the Broadband Data Collection that it was important for consumers to be able to challenge mobile broadband service providers' coverage in both stationary and in-vehicle (
36. GCI contends that in-motion tests from a non-standard road or a trail could be hazardous with little daylight and winter weather. The concerns posed by drive testing during winter weather are no longer relevant because we have moved the deadline for the data from March 1, 2022, to September 30, 2022. GCI further argues that an in-motion requirement is unnecessary because many grid cells lack roads and may not reasonably accommodate in-motion tests and, similarly, that many grid cells with roads have small populated areas, which makes it difficult to conduct a sufficient number of in-motion tests. As noted previously, where roads are insufficient, the drive test model allows tests to be conducted by vehicles other than automobiles on roads. Further, we have limited the grid cells with small testing areas by removing from drive testing the de minimis grid cells with less than 100,000 square meters of covered populated area.
37. Mobile service providers participating in the Alaska Plan are free to upgrade areas early with technologies beyond what they have committed to, notwithstanding the commitments set out in their performance plans. In the Alaska Drive Test Public Notice, the Bureau stated, for instance, that where providers have deployed 5G-NR, it would be included in the “LTE” frame. Moreover, GCI updated its performance
38. GCI has noted that, in some areas, it “has deployed a more advanced technology but does not yet provide the speed associated with that technology or frame. For example, “an area served with fiber may have LTE technology, but the locations more distant from the tower . . . do not receive 10/1 Mbps.” GCI claimed it “never expected that pops served with less than 10/1 Mbps would count toward the number of pops served at 10/1 Mbps but also never expected the Commission to disregard them completely for the purpose of assessing the number of pops served with 2/.8 Mbps or lower speeds.” GCI also claimed that, if it believed all fiber areas upgraded to 4G LTE were required to have 10/1 Mbps or better, it would have delayed some of its 4G LTE deployments until year six or later and excluded those areas as appearing on its FCC Form 477 submission as having 4G LTE.
39. We agree with GCI that we should not punish providers for deploying 4G LTE to some areas earlier than they committed to in their performance plan at the five-year milestone. Accordingly, where 4G LTE is indicated on FCC Form 477 at less than 10/1 Mbps in fiber-based areas, those areas will be included in the 3G frame (3G or better frame) and will be attributed to 3G commitments. If we were to include these areas (which may not yet be engineered to achieve 10/1 Mbps) in the fiber-based 4G LTE frame, then it could lead to higher fail rates in the frame. These higher fail rates would make GCI appear as if it had not met its commitments in places where GCI actually met (or exceeded) its five-year commitments. The approach we adopt will therefore avoid punishing GCI where it deployed 4G LTE early but was not ready to add those areas to its five-year commitments of 10/1 Mbps fiber-based LTE service. We will follow a similar approach for 4G LTE areas that would be included in the microwave and satellite 4G LTE frames. For example, if GCI deployed 4G LTE to a microwave-based area, as indicated by FCC Form 477 and corresponding middle-mile data, but GCI's FCC Form 477 filing shows minimum expected speeds as less than 2/.8 Mbps for such areas, then those areas will be included in the 3G or better frame. This clarification should ensure that GCI is being held to its commitments while not being penalized for deploying more advanced technology ahead of schedule.
40. When multiple technologies overlap within a grid cell, Commission staff will attribute the overlapped area to the frame with the more advanced technology. For example, in grid cells where fiber-based 4G LTE at 10/1 Mbps and 3G completely overlap in a grid cell, staff will attribute the grid cell to the fiber-based 4G LTE frame for satisfaction of the fiber-based 4G LTE commitments. Attribution to the more advanced technology allows the provider to receive due credit where it has built out consistent with its most rigorous performance requirements. Alternatively, in grid cells where fiber-based 4G LTE at 10/1 Mbps only partially overlaps 3G coverage, staff will attribute the grid cell portion covered by fiber-based 4G LTE to the fiber-based 4G LTE frame and the remaining covered area of the grid cell to the 3G frame. In this instance, a grid cell could be contained in multiple frames.
41. GCI claimed that more than half of the cells within its covered populated areas have multiple or overlapping technologies. GCI argued that, where a grid cell is both in a 4G LTE and 3G frame, once it passes for 4G LTE, the grid cell should be removed from the 3G frame so that pops in the 3G frame are not attributed as a “fail.”
42. We clarify that if a grid cell is selected for both 4G LTE and 3G testing, staff would evaluate both selections from the same drive tests. If the drive tests show that GCI passes the 4G LTE standard for that grid cell, then GCI will also receive credit for that grid cell passing the 3G standard; thus, GCI would not receive a “fail” for the 3G selection, obviating the need to remove the grid cell from the 3G frame. If, however, the testing threshold only passes for the 3G requirements, then the grid cell would be attributed as a “pass” to 3G but a “fail” as to 4G LTE, consistent with the pass/fail approach described below.
43. We adopt the pass/fail approach to testing for the Alaska Drive-Test Model proposed in the Alaska Drive Test Public Notice. For each grid cell in the sampling frame, the results of the tests will establish whether the provider delivers coverage at the minimum speeds to which it committed. When replicated throughout all of the randomly selected grid cells that are required for testing, the Commission will evaluate the percentage of the provider's coverage area where it has met its commitments. To demonstrate coverage in an area with a statistically significant number of tests, the Alaska Drive-Test Model requires the tests to pass at a rate capable of ensuring that the provider has met its milestones.
44. We adopt the following pass/fail methodology for the Alaska Drive-Test Model: 85% of drive test results in a grid cell must show speeds that meet or are above the minimum committed-to speed for that frame in order for the service to be considered “available” in that grid cell. Successful tests measure whether a mobile-provider participant meets a minimum expected speed in a given grid cell, with “expected” defined as being available at least 85% of the time. It does not mean that 85% of the population of that grid cell can expect to receive the tested speed 100% of the time. Although the Alaska Plan Order required mobile-provider participants to commit to a minimum download and upload speed(s), we do not expect mobile-provider participants to meet the minimum speed requirements on every single test, given that the performance of wireless networks is highly variable. Accordingly, we have set the pass rate at 85% to account for this variability.
45. To the extent that GCI may intimate that the 85% pass rate is too high, we do not alter it. The 85% pass rate we adopt for the Alaska Plan drive tests is similar to—but more lenient than—both the propagation modeling standard and the on-the-ground challenge data threshold adopted for the Broadband Data Collection. In the Second Report and Order in that proceeding, the Commission defined the parameters that service providers must use when modeling whether broadband is available using technology-specific minimum download and upload speeds with a cell edge probability of at least 90% and assuming minimum 50% cell loading. Additionally, mobile providers that submit on-the-ground speed test data to rebut a challenge to their coverage data are required to meet analogous thresholds to those required of challengers and demonstrate that sufficient coverage exists at least 90% of the time through a challenged area. These defined parameters in the Broadband Data Collection are more stringent than the propagation coverage relied on for the Alaska Plan drive test methodology, which uses the provider-defined propagation coverage from Form 477. Given that the provider has more discretion to set coverage parameters more favorably for itself in its Form 477 filings, it would have
46. GCI argues that it should receive partial credit for the percentage of tests recorded above the minimum threshold when that percentage is below 85%. GCI states that “rather than applying the 85 percent pass rate as an `all or nothing' bar for allowing a cell to be deemed covered, pops could count toward the commitment levels in proportion to the speeds that the speed tests confirm.” GCI provides the example that, “if 50 percent of the drive tests show speeds at or above 10/1 Mbps and 50 percent of the tests show speeds of .2/.05 Mbps, then 50 percent of the pops associated with that cell would count toward compliance with the 10/1 Mbps commitments, and 50 percent of the pops would count toward compliance with the <.2/.05 Mbps commitments.”
47. We do not find GCI's arguments persuasive. Our statistical framework is designed around grid cells being the smallest unit of testing and is not designed to measure partial grid cells. GCI's example of counting a 50% pass rate as indicative of 50% of the population receiving service is an incorrect interpretation of what testing represents—rather, a 50% pass rate indicates that service is available 50% of the time. Further, GCI's proposal to count failed tests toward a lesser standard is incompatible with random sampling as it would apply results to a standard that was not selected for testing in a given grid cell. This would mean that results are no longer random.
48. Moreover, GCI and CVW committed to provide “minimum expected upload/download speeds” in their performance plans. In addition, GCI was the only provider to emphasize in its performance plans that it would be responsible for this minimum speed throughout all of its committed-to coverage area to the edge. Thus, GCI's own commitments emphasize that it needs to provide the minimum speeds throughout the coverage area of the specified commitment and should not receive partial credit to the extent it did not provide its minimum committed-to speed to the edge of such coverage.
49. In addition, GCI's suggested “partial credit” approach would require an alternative drive-test methodology with a corresponding assessment regarding how that methodology would be “statistically significant.” But GCI does not provide a usable alternative methodology to replace the proposed drive test model. GCI's edit to the proposed drive-test methodology lacks a statistical basis from which, based on a limited set of tests, we could infer whether GCI had met its commitments. Partial credit also is inconsistent with the approach adopted in the Broadband Data Collection proceeding.
50. Finally, while we acknowledge that service declines farther away from the cell site, this service quality deterioration can be addressed in a number of ways, including adding more cell sites. GCI receives support to meet its commitments, and if it does not meet them initially, the drive tests can help it understand where improvements are needed in its network, which will help it deliver the services it committed to Alaskans.
51. The Alaska Drive-Test Model's use of frames will allow providers to separately test the areas where they committed to different minimum speeds based on middle-mile availability and last-mile technology used, consistent with how the providers delineated these speeds in their performance plans. In doing so, the Alaska Drive-Test Model will ensure that the drive tests yield data that allow Commission staff to assess whether the providers have met their commitments.
52. GCI expressed concern that the Alaska Drive-Test Model disregards data that show improvement, if fewer than 85% of tests in a grid cell are below the minimum speed threshold for a frame. GCI provided the example that, “if 80 percent of tests in a cell reflect speeds of 10/1 Mbps, and 20 percent of tests reflect speeds of 9/1 Mbps, the cell is deemed unserved at any speed—even though all tests reported far faster speeds than required in the next lower speed tier (2/.8 Mbps.).” Where GCI fails a 4G LTE/3G grid cell for 4G LTE, GCI argued that, if the speeds are sufficiently above the 3G commitment, the grid cell should be a “pass” for the 3G frame.
53. Where a grid cell is selected for only 4G LTE testing, we cannot credit the grid cell to 3G if it fails the 4G LTE speed tier. This suggestion, if adopted, would result in an under-sampling for the 4G LTE frame and an oversampling for the 3G frame. Further, this would have the effect of removing population from one frame and adding it to a different frame, thereby disturbing the original distribution of the grid cells across stratum as calculated prior to testing. For example, suppose there is a grid cell for which one of the providers has claimed 100 people are covered by 4G LTE, but for which testing shows only 80% of the results exceed the minimum performance threshold. GCI's proposal would reallocate the population from the 4G LTE frame (and the stratum within the 4G LTE frame to which that grid cell is assigned) to a different frame and stratum for which the testing would show that the performance benchmarks have been met (in this case, the 3G frame). However, as the stratification and sample allocation processes primarily consider population, this would mean that, after testing was completed, the total populations of the strata would have changed and, accordingly, the strata within each frame would no longer have the correct distribution of grid cells. Additionally, the number of samples optimally selected in each frame would also no longer be correct. This, in turn, would mean that the results could no longer be measured at the specified 90% confidence interval the Alaska Drive-Test Model sets for statistical significance.
54. For the reasons described above, the Alaska Drive-Test Model does not allow for partial credit where a mobile-provider participant fails a test in a higher performance tier. Frames are created based on the population covered at a particular minimum speed by technology from FCC Form 477 data set plus additional middle-mile data. If, however, the FCC Form 477 data show population coverage beyond what is committed to at the five-year mark, then the testing of that frame could show that the mobile-provider participant covered more people than it committed to in its performance plan. Where this happens, the commitments for the next lower tier last-mile technology will be accredited with the excess covered population of the higher technology tier.
55. GCI suggests that it should receive partial credit for providing service at lower speeds if it does not meet the 85% successful testing standard at the sampled technology, and for support, it cites to the Alternative Connect America Model (ACAM) waterfall methodology. For the ACAM waterfall methodology, a provider must satisfy a particular number of locations at a particular speed tier, and if a provider satisfies more than that, then the credit flows to the satisfaction of the next lower speed tier. For example, if 60 locations need to have 25/3 Mbps performance, 10 locations must have 10/1 Mbps
56. The ACAM waterfall methodology does not, as GCI suggests, support allowing failed performance at higher speed tiers and receiving credit for those failed tests in the lower speed tiers. The ACAM waterfall methodology requires complete satisfaction of the higher performance tier, and if the provider connects locations beyond the minimum required in the higher performance tier, the excess coverage would flow down to the next level tier. If the provider does not completely satisfy the higher tier, then no excess is present, and no “waterfall” occurs: The provider needed to deploy to more locations in that tier and does not receive credit in other tiers for this failure. GCI's proposal is thus inconsistent with the ACAM waterfall methodology.
57. The Alaska Drive-Test Model, as originally proposed and adopted here, includes a waterfall methodology similar to the one used in ACAM that is tailored to the drive-test requirement. Specifically, where a provider has committed to multiple tiers of technology (
58. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
59. An Initial Regulatory Flexibility Certification (IRFC) was incorporated in the Notice in this proceeding. In the Notice, the Bureau observed that the drive testing proposals required by the Alaska Plan apply only to wireless participants receiving more than $5 million in annual Alaska Plan support, excluding the smaller wireless participants that receive less than that amount in annual support. And, the proposals, if adopted, would apply to only two entities, one of which does not qualify as a small entity. Therefore, we certify that the requirements of the Order will not have a significant economic impact on a substantial number of small entities.
60. The Commission will send a copy of the Order, including a copy of the Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA and will be published in the
61. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
62. Accordingly,
63.
64.
The Alaska Plan requires certain plan participants to conduct and report speed tests of their networks, as described in this Order and appendices. Appendix A describes the data to be collected and the format in which it is to be reported.
This section details the data structure common for all mobile speed test data in the Alaska Plan. This file contains records of each mobile speed test in JavaScript Object Notation (JSON) format matching the specification in the table and sections below:
Each element of the “locations” array contains the geographic coordinates of the locations measured at the start and end of the speed test, as well as during the test (if measured).
Each element of the “cells” array contains telephony information about the cell/carrier.
This technical appendix provides the process for Alaska Plan mobile service providers receiving more than $5 million annually in support to gather drive testing data to include with its performance plan milestone certifications. The Alaska Plan requires such testing to include “a statistically significant number of tests in the vicinity of residences being covered” to demonstrate that plan participants have met the commitments in the performance plans approved by the Wireless Telecommunications Bureau (Bureau).
Remote Alaska is extraordinarily sparsely populated; virtually all its county-level geographies have population densities of three or fewer people per square mile. Accordingly, testing every location for a provider's coverage would be unduly burdensome, and testing a sample of locations is required.
For the sampling required to implement the testing procedures under the Alaska Plan, the Alaska Drive-Test Model uses stratified random sampling. This sampling methodology balances between the statistical significance required by the Alaska Plan and the burden on providers to conduct tests from a sufficient number of locations.
The following sections describe the details of the testing process. These technical details serve as a guide to both the Bureau and the providers doing the testing in determining:
• Where, within the geographic boundaries of the coverage map, a provider should conduct testing;
• how many locations a provider must test;
• what speed test measurements will be accepted for staff analysis by the Bureau; and
• how Bureau staff will evaluate the test data and adjudicate whether the provider has passed or failed the testing process.
To select locations for testing, one must first construct a list (known as a “sampling frame” or “frame”) of possible locations to select from. The construction of this frame is a multi-part process. First, we will create a set of “eligible populated areas.” Census blocks eligible for frozen-support funding would be included, and these census blocks would be merged with the populated areas of the Alaska Population-Distribution Model. Second, staff will merge the FCC Form 477 reported coverage areas (for which a provider committed to deploy and that are subject to testing) with the eligible populated areas to create a set of “covered populated areas.” Third, staff will overlay a grid of 1 km x 1 km squares onto the covered populated areas. Due to the fact that the Alaska Population-Distribution Model uniformly distributes population within the populated areas of a census block, the covered populated areas of a block likewise have a uniform population distribution. The total population of each grid cell is the sum of the populations of the covered populated areas contained within a given grid cell. For example, if a grid cell contains 25% of the covered populated area of a census block, that grid cell would be credited with 25% of that block's covered population. That same grid cell might also contain 100% of a second census block's covered populated area. So all of that census block's covered population would be credited to that grid cell, and the grid cell's total population will be the sum of these two populations. Lastly, any grid cell that contains fewer than 100,000 square meters of covered populated area, or 10% of the grid cell, will be excluded from the frame.
For commitments that do not promise different speeds for different middle-mile technologies, staff will construct the frame based on the reported technology coverage from the provider's FCC Form 477 submission. For areas served by more than one technology, as reported on the FCC Form 477, staff will only include the latest generation technology in the frame for any areas covered by multiple technologies. For example, if an area is covered by both 2G and 3G, then the area will only be included in the 3G frame. As no commitments were made for 5G-NR service, any 5G-NR coverage would be included within the LTE frame.
Frame stratification is the process of dividing a frame into subsets of similar characteristics, called strata. This methodology allows fewer grid cells to be selected for testing while producing the statistically equivalent level of accuracy as sampling the entire frame, thus reducing testing burden.
The number of strata for each frame depends on the number of grid cells in a given frame. To create the strata, the Bureau will use the cumulative square root of the frequency (CSRF) method, based on grid-level estimates of covered population. CSRF is a standard stratification method used to define the breaks between strata. It creates equal intervals not on the scale along the stratification variable (in this case, covered population) scale, but rather on the scale along the cumulated square root of the count (frequency) of grid cells belonging to equal intervals of the stratification variable. The first stratum in each frame would contain all grid cells with a population of less than one.
Based on the data staff currently have, each frame will likely contain between two and eight strata. Staff analysis has found that this stratification method produces strata of more equal sizes than other potential stratification methods (
Further, staff will select certain grid cells with probability 1 (grid cells that are called certainties) within each stratum. This ensures that grid cells that have a high population within a given stratum are tested; this should prevent the testing results of the stratum from being skewed by outlier results from low-weighted grid cells.
The Bureau will determine the number of grid cells that the provider has to test (that is, the sample size,
Let
Guided by the allocation scheme from the previous section, staff will use geographic information systems (GIS) tools or statistical software to randomly select grid cells in each stratum. Staff will then conduct a four-step optimization analysis, as follows.
First, we will draw a sample according to the adopted stratified random design. If there are multiple frames for a provider, we will sample independently from each frame. These multiple samples will be subjected to the rest of the optimization steps together as one set. We will then repeat this process at least one hundred times, each time yielding a sample, or group of samples, that are valid under the design.
Second, from this set of valid samples, we will identify the sample or samples with grid cells that contain the least number of incorporated and census-designated places.
Third, if there are multiple samples identified in the previous step, we will then determine which of the remaining samples contains the fewest number of selected grids that are located outside of incorporated and census-designated places.
Fourth, if there remains more than one sample identified in the previous step, we will randomly pick one.
The optimal sample so identified likely will result in a significant reduction in the number of communities that have to be visited for the required testing. The provider subject to testing will be notified of the sample grid cells in which it will be required to conduct on-the-ground speed tests.
Within each selected grid cell, a carrier must conduct a minimum of 20 tests, no less than 50% of which are to be conducted while in motion from a vehicle. This is the minimum number of tests to support the use of the binomial distribution to approximate the normal distribution that is needed in calculating the gap in coverage based on a one-sided 90% confidence interval, as discussed later in Section VII. To be considered valid, each test must be conducted between the hours of 6:00 a.m. and 10 p.m. local time, within the selected grid cell, and report all relevant parameters defined in Appendix A. Each component of a test (
Upon receipt of drive-testing submissions, the Bureau will perform a statistical analysis of the data to estimate the desired total population covered. Because the sample is selected using stratified random sampling, estimation techniques appropriate for this particular sampling method must be used.
Stratified random sampling requires an aggregate measurement from a sampled grid cell that will be combined with measurements from the other sampled grid cells to calculate stratum-level estimates of total covered population. These estimates will, in turn, be combined to produce an overall estimate of covered population. Drive tests conducted in a sample grid cell will be aggregated based on the following rule:
Let
To calculate the stratum-level estimates and the overall estimate of the covered population, the Bureau will use the estimation method appropriate for stratified random sampling, described next.
Combining these stratum-level estimates, we arrive at the overall covered population mean, calculated as:
Finally, the overall covered population total,
Because the estimate of the total covered population comes from a sample, direct comparison of
Because the Alaska Plan calls for a tiered approach in levying penalties for providers failing the testing process, the Bureau will use a one-sided 90% confidence interval for
The compliance gap is then calculated as:
If the gap in coverage is no more than 5% of the total population of a given commitment, no penalties will apply. Otherwise, penalties will apply according to the tiers adopted by the Commission.
Additionally, it is possible to have a negative gap in coverage if the upper limit of the confidence interval is greater than the total committed population. If a provider has committed to multiple tiers of technology (
This methodology therefore will not punish carriers for improving coverage beyond what they committed.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to find that the Indiana portion of the Louisville, Indiana-Kentucky area (Area) is attaining the 2015 primary and secondary ozone National Ambient Air Quality Standards (NAAQS), and to act in accordance with a request from the Indiana Department of Environmental Management (IDEM) to redesignate the Indiana portion of the area to attainment for the 2015 ozone NAAQS because the request meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Area includes Clark and Floyd Counties in Indiana and Bullitt, Jefferson, and Oldham Counties in Kentucky. IDEM submitted this request on February 21, 2022. EPA is proposing to approve, as a revision to the Indiana State Implementation Plan (SIP), the State's plan for maintaining the 2015 ozone NAAQS through 2035 in the Indiana portion of the Louisville area. EPA finds adequate and is proposing to approve Indiana's 2035 volatile organic compound (VOC) and oxides of nitrogen (NO
Comments must be received on or before June 17, 2022.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2020-0054, or EPA-R05-OAR-2022-0254 at
Andrew Lee, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)-353-7645,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
EPA is proposing to take several related actions. EPA is proposing to determine that the Indiana portion of the Louisville nonattainment area is attaining the 2015 ozone NAAQS, based on quality-assured and certified monitoring data for 2019-2021, and that the Indiana portion of the Louisville area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to change the designation of the Indiana portion of the Louisville area from nonattainment to attainment for the 2015 ozone NAAQS. EPA is also proposing to approve, as a revision to the Indiana SIP, the State's maintenance plan for the area. The maintenance plan is designed to keep the Indiana portion of the Louisville area in attainment of the 2015 ozone NAAQS through 2035. EPA is proposing to approve the newly established 2035 budgets for the Indiana portion of the Louisville area and is initiating the adequacy process for these budgets. Finally, EPA is proposing to approve portions of Indiana's January 21, 2021, submittal because they satisfy the applicable CAA requirements for a base year emissions inventory and emissions statement program for the Indiana portion of the Louisville area.
EPA has determined that ground-level ozone is detrimental to human health. On October 1, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 2015). Under EPA's regulations at 40 CFR part 50, the 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.070 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. See 40 CFR 50.19 and appendix U to 40 CFR part 50.
Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires EPA to designate as nonattainment any areas that are violating the NAAQS, based on the most recent three years of quality assured ozone monitoring data. The Louisville area was designated as a Marginal nonattainment area for the 2015 ozone NAAQS on June 4, 2018 (83 FR 25776) (effective August 3, 2018).
Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that:
On April 16, 1992, EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (57 FR 13498) and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in policy memoranda.
For redesignation of a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). An area is attaining the 2015 ozone NAAQS if it meets the 2015 ozone NAAQS, as determined in accordance with 40 CFR 50.19 and appendix U of part 50, based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. The 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.070 ppm, when truncated after the thousandth decimal place, at all the ozone monitoring sites in the area. The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90% of the days within the ozone monitoring seasons,
EPA has reviewed the available ozone monitoring data from monitoring sites in the Louisville area for the 2019-2021 period. These data have been quality assured, are recorded in the AQS, and were certified in advance of EPA's publication of this proposal. These data demonstrate that the Louisville area is attaining the 2015 ozone NAAQS. The annual fourth-highest 8-hour ozone concentrations and the 3-year average of these concentrations (monitoring site ozone design values) for each monitoring site are summarized in Table 1.
The Louisville area's 3-year ozone design value for 2019-2021 is 0.069 ppm,
EPA will not take final action to determine that the Louisville area is attaining the NAAQS or to approve the redesignation of this area if the design value of a monitoring site in the area violates the NAAQS after proposal but prior to final approval of the redesignation. As discussed in section IV.D.3. below, IDEM has committed to continue monitoring ozone in this area to verify maintenance of the 2015 ozone NAAQS.
For redesignation of an area from nonattainment to attainment of a NAAQS, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (
The September 4, 1992, memorandum from John Calcagni, Director, Air Quality Management Division, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment,” describes EPA's interpretation of which requirements are “applicable” for purposes of redesignation under section 107(d)(3)(E) of the CAA. Under this interpretation, a requirement is not “applicable” unless it was due prior to the state's submittal of a complete redesignation request for the area.
Section 110(a)(2) of the CAA delineates the general requirements for a SIP. Section 110(a)(2) provides that the SIP must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it must: (1) Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; (2) provide for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; (3) provide for implementation of a source permit program to regulate the modification and construction of stationary sources within the areas covered by the plan; (4) include provisions for the implementation of part C prevention of significant deterioration (PSD) and part D new source review (NSR) permit programs; (5) include provisions for stationary source emission control measures, monitoring, and reporting; (6) include provisions for air quality modeling; and, (7) provide for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires SIPs to contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of certain air pollutants,
In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's ozone attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated to attainment of the 2015 ozone NAAQS. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (
We have reviewed Indiana's SIP and propose to find that it meets the general SIP requirements under section 110 of the CAA, to the extent those requirements are applicable for purposes of redesignation. The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the 2015 ozone NAAQS nonattainment status of the Louisville area. Therefore, EPA concludes that these infrastructure requirements are not applicable requirements for purposes of review of the state's ozone redesignation request.
Section 172(c) of the CAA sets forth the basic requirements of air quality plans for states with nonattainment areas that are required to submit them pursuant to section 172(b). Subpart 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the areas' nonattainment classifications.
The Louisville area was classified as Marginal under subpart 2 for the 2015 ozone NAAQS. As such, the area is subject to the subpart 1 requirements contained in section 172(c) and section 176. Similarly, the area is subject to the subpart 2 requirements contained in section 182(a) (Marginal nonattainment
As provided in subpart 2, for Marginal ozone nonattainment areas such as the Louisville area, the specific requirements of section 182(a) apply in lieu of the attainment planning requirements that would otherwise apply under section 172(c), including the attainment demonstration and reasonably available control measures (RACM) under section 172(c)(1), reasonable further progress (RFP) under section 172(c)(2), and contingency measures under section 172(c)(9). 42 U.S.C. 7511a(a).
Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. This requirement is superseded by the inventory requirement in section 182(a)(1) discussed below.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Indiana's NSR program into the SIP on October 7, 1994 (59 FR 51108), with revisions subsequently approved into the SIP on July 8, 2011 (76 FR 40242). Nonetheless, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.”
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we believe the Indiana SIP meets the requirements of section 110(a)(2) for purposes of redesignation.
Section 176(c) of the CAA requires that federally supported or funded projects conform to the applicable SIP. The requirement to determine conformity applies to transportation plans, programs and projects that are developed, funded or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.
EPA interprets the conformity SIP requirements
Section 182(a)(1) requires states to submit a comprehensive, accurate, and current inventory of actual emissions from sources of NO
Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC reasonably available control technology (RACT) rules that were required under section 172(b)(3) prior to the 1990 CAA amendments. The Indiana portion of the Louisville area is not subject to the section 182(a)(2) RACT “fix up” requirement for the 2015 ozone NAAQS because it was designated as nonattainment for this standard after the enactment of the 1990 CAA amendments and, in any case, Indiana complied with this requirement for the Indiana portion of the Louisville area under the prior 1-hour ozone NAAQS.
Section 182(a)(2)(B) requires each state with a Marginal ozone nonattainment area that implemented or was required to implement a vehicle inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision for an I/M program no less stringent than that required prior to the 1990 CAA amendments or already in the SIP at the time of the CAA amendments, whichever is more stringent. For the purposes of the 2015 ozone NAAQS and the consideration of Indiana's redesignation request for this standard, the Louisville area is not subject to the section 182(a)(2)(B) requirement because the Louisville area was designated as nonattainment for the 2015 ozone NAAQS after the enactment of the 1990 CAA amendments and because Indiana complied with this requirement for the Louisville area under the prior 1-hour ozone NAAQS.
Regarding the source permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Indiana currently has a fully-approved part D NSR program in place. EPA approved Indiana's NSR program into the SIP on October 7, 1994 (59 FR 51108), with revisions subsequently approved into the SIP on July 8, 2011 (76 FR 40242). EPA approved Indiana's PSD program on May 20, 2004 (69 FR 29071). The state's PSD program will become effective in the Indiana portion of the Louisville area upon redesignation of the area to attainment.
Section 182(a)(3)(A) requires states to submit periodic emission inventories and section 182(a)(3)(B) requires states
Upon approval of Indiana's emissions inventory and emissions statements rules, the Indiana portion of the Louisville area will have satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.
At various times, Indiana has adopted and submitted, and EPA has approved, provisions addressing the various SIP elements applicable for the ozone NAAQS. As discussed above, if EPA finalizes approval of Indiana's section 182(a)(1) base year inventory requirements and section 182(a)(3)(B) emission statement requirements, EPA will have fully approved the Indiana SIP for the Indiana portion of the Louisville area under section 110(k) for all requirements applicable for purposes of redesignation under the 2015 ozone NAAQS. EPA may rely on prior SIP approvals in approving a redesignation request (
To redesignate an area from nonattainment to attainment, section 107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from the implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable emission reductions. EPA proposes to determine that Indiana has demonstrated that that the observed ozone air quality improvement in the Louisville area is due to permanent and enforceable reductions in VOC and NO
In making this demonstration, the State has calculated the change in emissions between 2017 and 2019. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to several regulatory control measures that the Louisville area and upwind areas have implemented in recent years. In addition, Indiana provided an analysis to demonstrate the improvement in air quality was not due to unusually favorable meteorology. Based on the information summarized below, EPA proposes to find that Indiana has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions.
On May 12, 2005, EPA published CAIR, which required eastern states, including Indiana, to prohibit emissions consistent with annual and ozone season NO
On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA published CSAPR to replace CAIR and to address the good neighbor provision for the 1997 ozone NAAQS, the 1997 PM
Reductions in VOC and NO
Indiana is using a 2017 emissions inventory as the base year because EPA's 2017 National Emissions Inventory (NEI) is the most recently available triennial emissions inventory preceding the nonattainment designations in April 2018. Indiana is using 2019 as the attainment year, which is appropriate because it is one of the years in the 2019-2021 period used to demonstrate attainment.
Indiana has provided inventories for point, nonpoint, on-road, and nonroad sources. The inventory for point sources includes facilities that report their emissions directly to IDEM, as well as sources such as airports and rail yards. Nonpoint sources, sometimes called area sources, include emissions from sources that are more ubiquitous, such as consumer products or architectural coatings. On-road sources are vehicles that are primarily used on public roadways, such as cars, trucks, and motorcycles. Nonroad sources include engine-based emissions that do not occur on roads, such as trains or boats.
For its point, nonpoint, and nonroad emissions inventories, Indiana used EPA's 2017 NEI and EPA's 2017 Emissions Modeling platform as its primary sources. To derive inventories for 2019, IDEM interpolated between 2016 and 2023, 2026, and 2032 data from EPA's 2016v2 modeling platform. The 2016v2 modeling platform and 2017 NEI have been quality-assured, and documentation regarding these datasets and their methods are available on EPA's website.
For its on-road emissions inventory, Indiana submitted an analysis by Kentuckiana Regional Planning Commission and Development Agency (KIPDA) in conjunction with the Louisville Air Pollution Control District (APCD). This analysis used EPA's MOVES3.0.2 model to generate summer day on-road emissions for 2015 and 2020 which was interpolated to arrive at 2017 NO
To obtain the inventories, IDEM summed the annual totals of NO
Using the inventories described above, Indiana's submittal documents changes in NO
As shown in Table 2, NO
To further support IDEM's demonstration that the improvement in air quality between the year violations occurred and the year attainment was achieved is due to permanent and enforceable emission reductions and not unusually favorable meteorology, an analysis was performed by the Lake Michigan Air Directors Consortium (LADCO). A classification and regression tree (CART) analysis was conducted with 2005 through 2020 data from Louisville-area ozone monitors. The goal of the analysis was to determine the meteorological and air quality conditions associated with ozone episodes, and construct trends for the days identified as sharing similar meteorological conditions.
Regression trees were developed for the monitors to classify each summer day by its ozone concentration and associated meteorological conditions. By grouping days with similar meteorology, the influence of meteorological variability on the underlying trend in ozone concentrations is partially removed and the remaining trend is presumed to be due to trends in precursor emissions or other non-meteorological influences. The CART analysis showed that, removing the impact of meteorology, the resulting trends in ozone concentrations declined over the period examined, and supported the conclusion that the improvement in air quality was not due to unusually favorable meteorology.
To redesignate an area from nonattainment to attainment, section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the maintenance plan must demonstrate continued attainment of the NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment of the NAAQS will continue
The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emission inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. In conjunction with its request to redesignate the Indiana portion of the Louisville area to attainment for the 2015 ozone NAAQS, Indiana submitted a SIP revision to provide for maintenance of the 2015 ozone NAAQS through 2035, more than 10 years after the expected effective date of the redesignation to attainment. As discussed below, EPA proposes to find that Indiana's ozone maintenance plan includes the necessary components and to approve the maintenance plan as a revision of the Indiana SIP.
EPA is proposing to determine that the Indiana portion of the Louisville area has attained the 2015 ozone NAAQS based on monitoring data for the period of 2019-2021. Indiana selected 2019 as the attainment emissions inventory year to establish attainment emission levels for VOC and NO
Indiana has demonstrated maintenance of the 2015 ozone NAAQS through 2035 by projecting that current and future emissions of VOC and NO
Indiana is using emissions inventories for the years 2030 and 2035 to demonstrate maintenance. 2035 was selected because it is more than 10 years after the expected effective date of the redesignation to attainment, and 2030 was selected to demonstrate that emissions are not expected to spike in the interim between the 2019 attainment year and the 2035 final maintenance year.
To develop emissions inventories for the years 2030 and 2035, Indiana used a methodology consistent with the methods used to develop its inventories for the years 2017 and 2019. This methodology is discussed above in section IV.C.2. of this proposed rule.
For its point, nonpoint, and nonroad emissions inventories, Indiana again used EPA's 2016v2 modeling platform. To derive inventories for 2030, IDEM interpolated between 2023 and 2026 and 2032 data from the 2016v2 modeling platform. To derive inventories for 2035, IDEM extrapolated forward from the 2016v2 modeling platform data using data points from 2016, 2023, 2026, and 2032 years.
For its on-road emissions inventory, Indiana again relied upon the KIPDA analysis, which used EPA's MOVES3.0.2 model to generate summer day on-road emissions for all years. KIPDA adjusted its analysis to use inputs and assumptions appropriate for the future years 2030 and 2035. In Appendix C of its submittal, Indiana has included a detailed narrative of KIPDA's methods.
Emissions data for the 2017 nonattainment year, 2019 attainment year, 2030 interim year, and 2035 maintenance year are shown in Tables 3 and 4 below. Data are expressed in terms of tons per ozone season day.
As shown in Tables 3 and 4, NO
In addition, EPA's 2016v2 modeling platform includes updated air quality modeling of the contiguous United States, projecting ozone concentrations at all air quality monitors in 2023, 2026, and 2032.
Indiana has committed to continue to operate its ozone monitors in the Indiana portion of the Louisville area for the duration of the maintenance period. Indiana remains obligated to meet monitoring requirements, to continue to quality assure monitoring data in accordance with 40 CFR part 58, and to enter all data into the AQS in accordance with Federal guidelines.
Indiana has confirmed that it has the legal authority to enforce and implement the requirements of its SIP. Indiana has further committed that it has the authority to implement the requested SIP revision, which would include the maintenance plan for the Indiana portion of the Louisville area. This includes the authority to adopt, implement, and enforce any subsequent emission control measures determined to be necessary to correct future ozone attainment problems.
Verification of continued attainment is accomplished through operation of
In addition, to track future levels of emissions, Indiana will continue to develop and submit to EPA updated emission inventories for all source categories at least once every three years, consistent with the requirements of 40 CFR part 51, subpart A, and in 40 CFR 51.122. The Consolidated Emissions Reporting Rule (CERR) was promulgated by EPA on June 10, 2002 (67 FR 39602). The CERR was replaced by the Annual Emissions Reporting Requirements on December 17, 2008 (73 FR 76539). The most recent triennial inventory for Indiana was compiled for 2017. Point source facilities covered by Indiana's emission statement program, described below in section VII., will continue to submit VOC and NO
Section 175A of the CAA requires that the state adopt a maintenance plan as a SIP revision that includes such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation of the area to attainment of the NAAQS. The maintenance plan must identify: The contingency measures to be considered and, if needed for maintenance, adopted and implemented; a schedule and procedure for adoption and implementation; and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be considered, adopted, and implemented. The maintenance plan must include a commitment that the state will implement all measures with respect to the control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d) of the CAA.
As required by section 175A of the CAA, Indiana has adopted a contingency plan for the Indiana portion of the Louisville area to address possible future ozone air quality problems. The contingency plan adopted by Indiana has two levels of response, a warning level response and an action level response.
In Indiana's plan, a warning level response shall be prompted whenever an annual (1-year) 4th high monitored value of 0.074 ppm or greater occurs in a single ozone season or a two-year average 4th high monitored value of 0.071 ppm or greater occurs within the maintenance area. A warning level response will require Indiana to conduct a study. The study would assess whether the ozone value indicates a trend toward a higher ozone value and whether emissions appear to be increasing. The study will evaluate whether the trend, if any, is likely to continue and, if so, the control measures necessary to reverse the trend, taking into account ease and timing of implementation. Any implementation of necessary controls in response to a warning level response trigger will occur within 12 months of the conclusion of the ozone season.
In Indiana's plan, an action level response will be triggered if a three-year design value exceeds the level of the 2015 ozone NAAQS (0.070 ppm). When an action level response is triggered and not found to be due to an exceptional event, malfunction, or noncompliance with a permit condition or rule requirement, Indiana will determine what additional control measures are needed to ensure future attainment of the 2015 ozone NAAQS. Control measures selected will be adopted and implemented within 18 months from the close of the ozone season that prompted the action level. Indiana may also consider if significant new regulations not currently included as part of the maintenance provisions will be implemented in a timely manner and would thus constitute an adequate contingency measure response.
Indiana included the following list of potential contingency measures in its maintenance plan (although Indiana is not limited to the measures on this list):
To qualify as a contingency measure, emissions reductions from that measure must not be factored into the emissions projections used in the maintenance plan.
EPA has concluded that Indiana's maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. In addition, as required by section 175A(b) of the CAA, Indiana has committed to submit to EPA an updated ozone maintenance plan eight years after redesignation of the Indiana portion of the Louisville area to cover an additional ten years beyond the initial 10-year maintenance period. Thus, EPA finds that the maintenance plan SIP revision submitted by Indiana for the Louisville area meets the requirements of section 175A of the CAA, and EPA proposes to approve it as a revision to the Indiana SIP.
Under section 176(c) of the CAA, new transportation plans, programs, or projects that receive Federal funding or support, such as the construction of new highways, must “conform” to (
Under the CAA, states are required to submit, at various times, control strategy SIPs for nonattainment areas and maintenance plans for areas seeking redesignations to attainment of the ozone standard and maintenance areas.
Under 40 CFR part 93, budgets for an area seeking a redesignation to attainment must be established, at minimum, for the last year of the maintenance plan. A state may adopt budgets for other years as well. The budgets serve as a ceiling on emissions from an area's planned transportation system. The budgets concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the budgets in the SIP and how to revise the budgets, if needed, subsequent to initially establishing the budgets in the SIP.
As discussed earlier, Indiana's maintenance plan includes NO
As shown in Table 5, the 2035 budgets exceed the estimated 2035 on-road sector emissions. In an effort to accommodate future variations in travel demand models and vehicle miles traveled forecast, IDEM allocated to the mobile sector a portion of the safety margin, as described further below. Indiana has demonstrated that the Indiana portion of the Louisville area can maintain the 2015 ozone NAAQS in the 2035 maintenance year with mobile source emissions of 17.18 tons per ozone season day of NO
EPA is proposing to approve the budgets for use to determine transportation conformity in the Indiana portion of the Louisville area, because EPA has determined that the area can maintain attainment of the 2015 ozone NAAQS for the relevant maintenance period with mobile source emissions at the levels of the budgets.
A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. As noted in Tables 3 and 4, the emissions in the Indiana portion of the Louisville area are projected to have safety margins of 6.85 tons per ozone season day for NO
As shown in Table 5 above, Indiana is allocating a portion of that safety margin to the mobile source sector. In 2035, Indiana is allocating 2.24 tons per ozone season day and 0.72 tons per ozone season day of the NO
As discussed above, sections 172(c)(3) and 182(a)(1) of the CAA require areas to submit a base year emissions inventory. For the 2015 ozone NAAQS, EPA specifies that states submit ozone season day emissions estimates for an inventory calendar year to be consistent with the base year for RFP plans as required by 40 CFR 51.1310(b). For the RFP base year for the 2015 ozone NAAQS under 40 CFR 51.1310(b), states may use a calendar year for the most recently available complete triennial emissions inventory (40 CFR 51, subpart A) preceding the year of the area's effective date of designation as a nonattainment area (83 FR 62998).
In its January 21, 2021, submittal, Indiana requested that EPA approve into its SIP an inventory addressing the emissions inventory requirement of CAA section 182(a)(1). Indiana's SIP revision included inventories of NO
The primary source for Indiana's 2017 inventory is the annual emissions data contained in the 2017 NEI. In developing this inventory, Indiana estimated emissions per ozone season day. To convert annual emissions data to ozone season day values, emissions from June to August, IDEM extracted data from EPA's 2017 Emissions modeling platform and calculated a conversion factor for the EGU, point, nonpoint, on-road, nonroad categories.
NO
Indiana's January 21, 2021, emissions inventory submission includes a demonstration showing that CAA section 110(l) does not prohibit approval of this SIP revision; such a demonstration is sometimes called an anti-backsliding demonstration. Section 110(l) provides that EPA cannot approve a SIP revision if the revision would interfere with attainment and maintenance of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA. IDEM is making this submission as required by CAA sections 172(c)(3) and 182(a)(1), and approval of the 2017 base year inventories would strengthen the Indiana SIP and would not interfere with any applicable CAA requirement.
EPA reviewed Indiana's January 21, 2021, submittal for consistency with sections 172(c)(3) and 182(a)(1) of the CAA, and with EPA's emissions inventory requirements. In particular, EPA reviewed the techniques used by IDEM to derive and quality assure the emissions estimates. The documentation of the emissions estimation procedures is thorough and is adequate for EPA to determine that Indiana followed acceptable procedures to estimate the emissions. Accordingly, we propose to conclude that Indiana has developed inventories of NO
In this rulemaking, EPA is only evaluating the portions of Indiana's January 21, 2021, emissions inventory submittal relating to the Indiana portion of the Louisville area. EPA is not evaluating inventories relating to other nonattainment areas. Instead, EPA will evaluate these inventories in a separate rulemaking.
Section 182(a)(3)(B) of the CAA requires states to include regulations in the SIP to require sources (source facilities) to submit annual statements characterizing sources of NO
EPA approved IDEM's emissions reporting rule, IAC 2-6, into the Indiana SIP on June 16, 2021, 86 FR 31922, and it is currently being implemented. The rule requires sources of NO
EPA is proposing to determine that the Indiana portion of the Louisville nonattainment area is attaining the 2015 ozone NAAQS, based on quality-assured and certified monitoring data for 2019-2021 as presented in Indiana's February 21, 2022 submittal. EPA is proposing to approve portions of Indiana's January 21, 2021, submittal as meeting the base year emissions inventory and emissions statement requirements of sections 182(a)(1) and 182(a)(3), respectively. EPA is proposing to determine that upon final approval of Indiana's 2017 base year emissions inventory and emission statement SIP, the area will have met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to change the legal designation of the Indiana portion of the Louisville area from nonattainment to attainment for the 2015 ozone NAAQS. EPA is also proposing to approve, as a revision to the Indiana SIP, the state's maintenance plan for the area. The maintenance plan is designed to keep the Indiana portion of the Louisville area in attainment of the 2015 ozone NAAQS through 2035. EPA finds adequate and is proposing to approve the newly-established 2035 budgets for the Louisville area.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, the proposed actions to approve Indiana's SIP submissions merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that these reasons, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
This proposal presents the preliminary results of the Environmental Protection Agency's (EPA's) review of the New Source Performance Standards (NSPS) for Automobile and Light Duty Truck Surface Coating Operations as required by the Clean Air Act (CAA). The EPA is proposing, in a new NSPS subpart, revised volatile organic compound (VOC) emission limits for prime coat, guide coat, and topcoat operations for affected facilities that commence construction, modification or reconstruction after May 18, 2022. In addition, the EPA is proposing amendments under the new NSPS subpart: Revision of the plastic parts provision; updates to the control devices and control device testing and monitoring requirements; revision of the transfer efficiency provisions; revision of the recordkeeping and reporting requirements, the addition of work practices to minimize VOC emissions; the addition of electronic reporting; clarification of the requirements for periods of startup, shutdown and malfunction; and other amendments to harmonize the new NSPS subpart and Automobile and Light Duty Truck Surface Coating National Emission Standards for Hazardous Air Pollutants (NESHAP) requirements. The EPA is also proposing to amend NSPS subpart MM to apply to sources that commence construction, reconstruction, or modification after October 5, 1979, and on or before May 18, 2022 and to add electronic reporting requirements.
Comments must be received on or before July 18, 2022. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before June 17, 2022.
You may send comments, identified by Docket ID No. EPA-HQ-OAR-2021-0664, by any of the following methods:
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For questions about this proposed action, contact Ms. Paula Deselich Hirtz, Minerals and Manufacturing Group, Sector Policies and Programs Division (D243-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-2618; fax number: (919) 541-4991; and email address:
To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at
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The
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The source category that is the subject of this proposal is automobile and light duty truck (ALDT) surface coating operations regulated under CAA section 111 New Source Performance Standards. The North American Industry Classification System (NAICS) codes for the ALDT manufacturing
In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at
The proposed changes to the CFR that would be necessary to incorporate the changes proposed in this action are presented in an attachment to the memorandum titled:
The EPA's authority for this rule is CAA section 111, which governs the establishment of standards of performance for stationary sources. Section 111(b)(1)(A) of the CAA requires the EPA Administrator to list categories of stationary sources that in the Administrator's judgment cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public health or welfare. The EPA must then issue performance standards for new (and modified or reconstructed) sources in each source category pursuant to CAA section 111(b)(1)(B). These standards are referred to as new source performance standards or NSPS. The EPA has the authority to define the scope of the source categories, determine the pollutants for which standards should be developed, set the emission level of the standards, and distinguish among classes, types, and sizes within categories in establishing the standards.
CAA section 111(b)(1)(B) requires the EPA to “at least every 8 years review and, if appropriate, revise” new source performance standards. In setting or revising a performance standard, CAA section 111(a)(1) provides that performance standards are to “reflect the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C. 7411(a)(1). This definition makes clear that the EPA is to determine both the best system of emission reduction (BSER) for the regulated sources in the source category and the degree of emission limitation achievable through application of the BSER. The EPA must then, under CAA section 111(b)(1)(B), promulgate standards of performance for new sources that reflect that level of stringency. CAA section 111(b)(5) precludes the EPA from prescribing a particular technological system that must be used to comply with a standard of performance. Rather, sources can select any measure or combination of measures that will achieve the standard.
Pursuant to the definition of new source in CAA section 111(a)(2), proposed standards of performance apply to facilities that commence construction, reconstruction, or modification after the date of publication of such proposed standards in the
Pursuant to the CAA section 111 authority described above, the EPA listed the ALDT surface coating source category as a source category under CAA section 111(b)(1). 44 FR 49222, 49226 (Aug. 21, 1979).).
The NSPS for ALDT surface coating operations (ALDT NSPS) were promulgated at 40 CFR part 60, subpart MM on December 24, 1980 (45 FR 85415, December 24, 1980). Subpart MM applies to affected facilities that commence construction, reconstruction, or modification after October 5, 1979. The affected facility is defined as each prime coat operation, each guide coat operation, and each topcoat operation in an automobile or light duty truck assembly plant. The NSPS applies to these sources regardless of production capacity. The ALDT NSPS established VOC emission limits calculated on a monthly basis for each electrodeposition (EDP) prime coat operation, guide coat (primer-surfacer) operation and topcoat operation. The emission limits and reporting requirements in the 1980 ALDT NSPS were amended in a series of actions from 1980 to 1994 (59 FR 51383, October 11, 1994) to include innovative technology review waivers to increase the topcoat operation VOC emission limitations for certain plants, to reduce the reporting frequency for deviations from the rule requirements from quarterly to semiannually, and to revise the VOC emission limitation for the EDP prime coat operation in response to an industry petition for reconsideration. The innovative technology waivers were issued under CAA sections 111(j) and 173 to nine auto assembly plants for topcoat operations based on their continued use of solvent borne topcoat (base coat/clear coat enamel) to achieve a high-quality finish instead of converting to a waterborne topcoat. The VOC emission limits for the EDP prime coat operation were revised in response to an industry reconsideration petition to base the emission limit on an equation that includes a term for the EDP prime coat dip tank solids turnover ratio (R
Subsequent to the ALDT NSPS, the EPA promulgated other regulatory actions pursuant to CAA sections 112 and CAA 183(e) that also regulate or otherwise address emissions from the same ALDT surface coating operations. These regulatory actions include: the National Emission Standards for Hazardous Air Pollutants: Surface Coating of Automobiles and Light-Duty Trucks at 40 CFR part 63, subpart IIII (ALDT NESHAP) promulgated on April 26, 2004 (69 FR 22623), the Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly
Although the resulting ALDT NESHAP requirements and ALDT CTG recommendations cannot be compared directly to the ALDT NSPS due to the differences in CAA authorities, pollutants, emission limits and format, they apply to the same coating materials and operations and were therefore considered in our review.
The affected surface coating operations at an assembly plant described in the 1980 ALDT NSPS included the prime coat operation, the guide coat operation, and the topcoat operation. The prime coat operation employed the use of a waterborne coating and included the prime coat spray booth or dip tank, a series of rinses, and a bake oven to apply and cure the prime coat on automobile and light-duty truck bodies. The guide coat operation followed the prime coat operation and included the guide coat spray booth, flash-off area and bake oven(s) which were used to apply and dry or cure a surface coating between the prime coat and topcoat operations on the components of automobile and light-duty truck bodies. The topcoat operation followed the guide coat operation and included the topcoat spray booth, flash-off area, and bake oven(s) which were used to apply and dry or cure the final coating(s) on components of automobile and light-duty truck bodies. The topcoat operation included both single stage topcoats (lacquers) and topcoats applied in two stages (enamels) consisting of a pigmented basecoat applied prior to an overlying clearcoat.
As discussed in the 1979 ALDT NSPS proposal preamble, most ALDT facilities had non-EDP (spray applied) prime coat systems and planned to switch to an EDP (dip tank) prime coat system to reduce VOC emissions to comply with state implementation plans (SIPs) (44 FR 57795). No control devices were used to control prime coat operation emissions at that time. For guide coat and topcoat operations, only two ALDT facilities used waterborne coatings and the remaining facilities used solvent borne coatings. Topcoat operations employed the use of solvent borne coatings and VOC control devices such as regenerative thermal oxidizers (RTO) and catalytic oxidizers.
The 1979 ALDT NSPS proposal evaluated two regulatory options to control VOC emissions from ALDT surface coating operations. (44 FR 57795) The first option was determined to be the standard that reflected the level of emission reduction achievable by the BSER and was based on two equivalent control alternatives. Alternative A was based on the use of EDP waterborne prime coat, waterborne guide coats and topcoats, and no controls; and Alternative B was based on the use of EDP waterborne prime coat and solvent borne guide coats and topcoats, with control of the topcoat booth and oven. The second regulatory option was determined to be not cost-effective and consisted of Alternative B with control of the guide coat booth and oven. The evaluation also took into account the differences between ALDT surface coating operations using lacquer coatings versus enamel coatings as the industry was in the process of converting to enamel coatings at the time. The associated energy and economic impacts of the options were also assessed using growth projections for the industry. Additional details on the development of the ALDT NSPS can be found in the document titled
The ALDT NSPS, as promulgated in 1980 and amended in 1994, established separate volatile organic compounds (VOC) emission limitations for each surface coating operation:
• For prime coat operations
○ For EDP (dip tank) prime coat, 0.17 to 0.34 kilograms VOC/liter applied coating solids (kg VOC/l acs) (1.42 to 2.84 lbs VOC/gal acs) depending on the solids turnover ratio (R
○ For Non-EDP (spray applied) prime coat, 0.17 kg VOC/l acs (1.42 lb VOC/gal acs);
• For guide coat operations, 1.40 kg VOC/l acs (11.7 lb VOC/gal acs); and
• For topcoat operations, 1.47 kg VOC/l acs (12.3 lb VOC/gal acs).
Surface coating operations for plastic body components or all-plastic automobile or light-duty truck bodies on separate coating lines are exempted from the ALDT NSPS; however, the attachment of plastic body parts to a metal body before the body is coated does not cause the metal body coating operation to be exempted.
The ALDT NSPS requires a monthly compliance demonstration for each operation which is the calculation of mass of VOC emitted per volume of applied coating solids (kg VOC/l acs or lbs VOC/gal acs) each calendar month. The ALDT NSPS provides default transfer efficiencies (TE) for the various surface coating application methods that were in practice at the time for the monthly compliance calculation. TE is the ratio of the amount of coating solids transferred onto the surface of a part or product to the total amount of coating solids used. Higher TEs indicate a higher fraction of coatings solids are deposited onto the part or product and a lower fraction of coating solids become overspray that is captured by the spray booth filters or is deposited onto the spray booth grates, walls and floor, or to the water collection system below the grates. The default TE values in the NSPS also account for the recovery of purge solvent. The monthly compliance calculation also takes into consideration the VOC destruction efficiency (as determined by the initial or the most recent performance testing of control devices) needed to meet the VOC emission limitations. The control devices identified in the ALDT NSPS include thermal and catalytic oxidizers. In addition, the NSPS requires continuous monitoring of temperature for the thermal and catalytic oxidizers. Quarterly reporting is required to report emission limit exceedances and negative reports are required for no exceedances.
Today, all prime coat operations at ALDT facilities use waterborne coatings and cathodic EDP systems. The guide coat operations use a variety of coatings, including waterborne, solvent borne and powder coatings using automatic (including robotic) and manual high efficiency spray application technologies. The topcoat operations use waterborne and solvent borne coatings and are applied using a “2-wet” application process using automatic (including robotic) and manual and high efficiency spray application technologies. The guide coat and topcoat processes have also been combined by some facilities in an application referred to as “3-wet” process in which the guide coat booth is followed by a heated flash zone (instead of an oven) and the topcoat (base coat and clearcoat) is subsequently applied before the vehicle body proceeds to the topcoat flash zone and oven. Additional details on the developments and current industry practices can be found in the document titled
The EPA estimates that there are 45 ALDT assembly plants located in 14 states and owned by 16 different parent companies. Of the 45 ALDT assembly plants, one parent company owning a single plant will no longer be considered a small entity by the end of this year (2022) due to the anticipated sale of the affected portions of the plant to a company that is not a small entity. One other plant plans to start construction in May 2022 and is not a small entity. We did not include this plant in our NSPS review due to lack of data for the plant, but we did include its location in our demographic analysis and tribal proximity analysis.
Based on our review, we have determined that 44 of the 45 assembly plants are currently subject to the ALDT NSPS in 40 CFR part 60, subpart MM, all of which have affected surface coating operations that were constructed, reconstructed, or modified after October 5, 1979. One plant is not subject to the ALDT NSPS due to an exemption for the coating of all plastic bodies, which we address in this action. Based on our review of best achievable control technology (BACT) and lowest achievable emission rate (LAER) limits for new, modified, or reconstructed ALDT surface coating operations, we determined that about one-third of the assembly plants are subject to limits that are more stringent than the limits in the ALDT NSPS subpart MM. We also determined that 44 of the 45 ALDT assembly plants are also currently subject to the ALDT NESHAP in 40 CFR part 63, subpart IIII. One plant is not subject to the ALDT NESHAP because it is considered to be an area source and not a major source under CAA section 112. The number of employees and annual revenues are expected to increase for this plant as it increases production and is expected to become a CAA 112 major source in 2022. Therefore, for the purpose of this analysis, it was considered to be a CAA 112 major source.
During our review of the current ALDT NSPS (40 CFR part 60, subpart MM) and the development of the proposed new ALDT NSPS subpart MMa (
We also reviewed EPA's RACT/BACT/LAER Clearinghouse database to identify BACT and LAER determinations for ALDT surface coating operations, including more stringent emission limitations than the ALDT NSPS as well as potential new control technologies. The terms “RACT,” “BACT,” and “LAER” are acronyms for different program requirements relevant to the NSR program. RACT, or Reasonably Available Control Technology, is required on existing sources in areas that are not meeting national ambient air quality standards (NAAQS) (non-attainment areas). BACT, or Best Available Control Technology, is required on new or modified major sources in areas meeting NAAQS (attainment areas). LAER, or Lowest Achievable Emission Rate, is required on new or modified major sources in non-attainment areas.
In addition to the NEI, ECHO and EIS databases, the EPA reviewed the additional information sources listed below for advances in technologies, changes in cost, and other factors to review the standards for ALDT affected sources. These include the following:
• Operating permits for 40 of 44 of the ALDT assembly plants.
• Compliance demonstration reports including control device performance data for one-fourth of the plants.
• Publicly available facility inspection reports and other information on state websites.
• Construction permits and BACT determinations from EPA Region 5 and state agencies.
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• Background documents and industry supplied data for supporting regulatory actions promulgated subsequent to the 1980 ALDT NSPS, including the 2004 ALDT NESHAP, the 2020 RTR amendments to the 2004 ALDT NESHAP, and the 2008 CTG for Automobile and Light-Duty Truck Assembly Coatings.
As noted in section II.A., CAA section 111 requires the EPA, at least every 8 years to review and, if appropriate revise the standards of performance applicable to new, modified, and reconstructed sources. If the EPA revises the standards of performance, they must reflect the degree of emission limitation achievable through the application of the BSER taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements. CAA section 111(a)(1).
In reviewing an NSPS to determine whether it is “appropriate” to revise the standards of performance, the EPA evaluates the statutory factors, including the following information:
• Expected growth for the source category, including how many new facilities, reconstructions, and modifications may trigger NSPS in the future.
• Pollution control measures, including advances in control technologies, process operations, design or efficiency improvements, or other systems of emission reduction, that are “adequately demonstrated” in the regulated industry.
• Available information from the implementation and enforcement of current requirements indicates that emission limitations and percent reductions beyond those required by the current standards are achieved in practice.
• Costs (including capital and annual costs) associated with implementation of the available pollution control measures.
• The amount of emission reductions achievable through application of such pollution control measures.
• Any non-air quality health and environmental impact and energy requirements associated with those control measures.
In evaluating whether the cost of a particular system of emission reduction is reasonable, the EPA considers various costs associated with the particular air pollution control measure or a level of control, including capital costs and operating costs, and the emission reductions that the control measure or particular level of control can achieve. The agency considers these costs in the context of the industry's overall capital expenditures and revenues. The agency also considers cost-effectiveness
After the EPA evaluates the factors described above, the EPA then compares the various systems of emission reductions and determines which system is “best.” The EPA then establishes a standard of performance that reflects the degree of emission limitation achievable through the implementation of the BSER. In doing this analysis, the EPA can determine whether subcategorization is appropriate based on classes, types, and sizes of sources, and may identify a different BSER and establish different performance standards for each subcategory. The result of the analysis and BSER determination leads to standards of performance that apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the
See sections II.C. and D. of this preamble for information on the specific data sources that were reviewed as part of this action.
This action presents the EPA's review of the requirements of 40 CFR part 60, subpart MM pursuant to CAA 111(b)(1)(B). As described in section III of this preamble, the statutory review of NSPS subpart MM for ALDT surface coating operations focused on whether there are any emission reduction techniques that are used in practice that achieve greater emission reductions than those currently required by NSPS subpart MM for ALDT surface coating operations and whether any of these developments in practices have become the “best system of emissions reduction.” Based on this review, we have determined that there are techniques used in practice that achieve greater emission reductions than those currently required by NSPS subpart MM for ALDT surface coating operations. The results and proposed decisions based on the analyses performed pursuant to CAA section 111(b) are presented in more detail below. Pursuant to CAA section 111(a), the proposed standards included in this action would apply to facilities that begin construction, reconstruction, or modification after May 18, 2022.
To develop the costs and emission reductions for this review we used data obtained from readily available stack test reports and operating permits for eight ALDT facilities. Although the prime coat, guide coat, and topcoat operations are separate affected facilities with separate emission limitations, the operations are considered to be a surface coating system and as such, we found during our review they are often controlled as a system and share common control devices. These control devices also control other operations that are not affected facilities and are not subject to the ALDT NSPS (
As required by CAA section 111, the EPA's BSER analysis for ALDT NSPS affected surface coating operations (prime coat, guide coat, and topcoat) considered the air quality impacts of the VOC-reducing control measures and the secondary impacts of these control measures. Indirect or secondary impacts are impacts that would result from the increased electricity usage and natural gas consumption associated with the operation of control devices to meet the revised VOC emission limits proposed for subpart MMa. These impacts were calculated on a per facility basis and were based on the ALDT facilities for which we had data. Based on the data for these ALDT facilities all three surface coating operations were affected and the entire coating line was considered to be new, reconstructed or modified. The annual average VOC emission reduction associated with the BSER analysis for the three ALDT affected surface coating operations is estimated to be 331 tpy per facility. The energy impact estimates associated with these VOC emission reductions include an increase in the average electricity consumption per facility of 2.54 million kwh per year and an increase in the average natural gas consumption per facility of 48.8 million scf per year. Based on these results, the EPA concluded there are no meaningful secondary impacts associated with this proposed action.
The EPA also evaluated other air quality impacts of the control measures including greenhouse gas (GHG) production. We estimate the increased usage of electricity and natural gas would result in an increase in the average production of 4,474 metric tons of carbon dioxide equivalents (mtCO2e) of GHG emissions per facility per year. We did not evaluate the impacts of the control measures on other pollutants such as hydrocarbons (other than VOC), NO
We are soliciting comments (including data, information, analysis and other input) with respect to the results of our analysis of the air emissions impacts, including the secondary impacts of the control measures presented here. Additional detailed information is provided in the memorandum titled
The ALDT surface coating process begins with a bare metal vehicle body. The body first goes through a zinc phosphate process. This process removes particulates from surface of the vehicle body. It also provides corrosion resistance and promotes adhesion between the metal and paint. The vehicle body is then submerged in the EDP prime coat dip tank. The EDP prime coat tank contains a mixture of water, particles of resin and pigment, and solvent. An electric current in the bath causes prime coat particles to deposit onto the body, including into enclosed areas that would not be coated in a conventional spray coating operation. After a predetermined amount of prime coat has been deposited, the body is removed from the bath, rinsed of excess coating, and then goes to a heated oven to cure the primer. Inside the curing oven, solvent that is contained in the primer particles is released. The VOC emissions from ALDT prime coat operations are generated from the evaporation of solvent in the EDP prime coat curing oven and, to a much lesser extent, from evaporation of the solvent included in the aqueous solution in the dip tank.
The current ALDT NSPS prime coat limit in 40 CFR 60.392(a) is 0.17 kg VOC/l acs (1.42 lb VOC/gal acs) and is based on the use of waterborne EDP prime coat operation without the use of add-on controls. According to facility operating permits reviewed for this action, 19 facilities with 28 EDP prime coat operations are currently subject to more stringent prime coat limits than the current ALDT NSPS prime coat limit. All but two of these 28 EDP prime coat operations with more stringent limits are controlled with a thermal oxidizer, catalytic oxidizer, or RTO on the curing oven exhaust. Four of these facilities also control the emissions from the EDP prime coat dip tank (in addition to the oven emissions) with some form of thermal oxidation. The prime coat limits for these facilities that are more stringent than the NSPS range from 0.005 kg/l acs (0.04 lb VOC/gal acs) to 0.16 kg VOC/l acs (1.34 lb VOC/gal acs); the average is 0.040 kg VOC/l acs (0.33 lb VOC/gal acs) and the median is 0.024 kg VOC/l acs (0.20 lb VOC/gal acs). As a result of the information and findings described above, we evaluated two regulatory options that are more stringent than the current NSPS for prime coat operation, that are demonstrated by facilities using an EDP prime coat dip tank system to apply the prime coat.
The first option evaluated in the ALDT NSPS review is a numerical VOC emission limit of 0.028 kg VOC/l acs (0.23 lb VOC/gal acs) based only on control of the curing oven emissions with thermal oxidation (
The second option we evaluated is a numerical VOC emission limit of 0.005 kg/l acs (0.040 lb VOC/gal acs) to reflect control of both the oven and the tank emissions with an RTO capable of achieving 95 percent DRE. Based on data from emissions testing at a facility with this control option, we estimated the cost-effectiveness of controlling the tank emissions to be $91,061 per ton of VOC reduced. In addition, we estimated this option would achieve (only) an additional 3 tpy of VOC reductions over the first option and would have an estimated incremental cost-effectiveness of $46,000 per ton of VOC reduced compared to the first option. Because this option is significantly less cost-effective than the baseline level of control, and has a high incremental cost per ton compared to the first option, we have determined the second option does not reflect BSER.
Based on the analysis described above, we are proposing to revise the VOC emission limit for the prime coat operation. The proposed VOC emission limit reflects the EPA's determination that control of the curing oven emissions with thermal oxidation that is capable of achieving 95 percent DRE represents the updated BSER for prime coat operation. The proposed revised standard would limit VOC emissions from prime coat operations to 0.028 kg VOC/l acs (0.23 lb VOC/gal acs) based on the control of the curing oven emissions only. This proposed VOC emission limit also matches the operating permit limit for 13 of the 44 plants for which we have data, therefore we consider this limit to be adequately demonstrated.
If finalized, the revised emission limit for prime coat operations will appear as the new limit in the new ALDT NSPS subpart MMa. It will not include the solids turnover ratio (R
In the current subpart MM, the VOC emission limit for the dip tank varies according to the solids turnover ratio. As the R
Because the permit limits do not include factors to account for the solids turnover ratio, we understand that to mean that facilities currently using the EDP prime coat process are able to consistently maintain the solids turnover ratio at a value equal to or greater than 0.16, and we are proposing that the R
In conclusion, based on our review, the EPA is proposing in a new subpart (subpart MMa) a VOC emission limit of 0.028 kg VOC/l acs (0.23 lb VOC/gal acs) for the prime coat operation based on the control of the curing oven emissions with thermal oxidation (
After the prime coat operation, sealer and other materials are applied to the vehicle body. The vehicle body is then routed to a series of spray booths and ovens in which a guide coat is applied followed by application of the topcoat which consists of a base coat and a clear coat. Review of the facility operating permits show that current guide coat operations use either a waterborne or solvent borne coating with a small number of facilities using a powder guide coat. The guide coat operation may have heated flash off zones, in addition to, or replacing the guide coat oven. The guide coat can be applied in either a 2-wet coating process or a 3-wet coating process. In a 2-wet coating process, the guide coat is fully cured in an oven before the following topcoat operation. In a 3-wet coating process, the guide coat is partially cured in a heated flash off area before the following topcoat operation. The VOC emissions from the guide coat curing ovens are almost always controlled by a thermal oxidizer. The VOC emissions from the guide coat booths and flash off areas may be controlled by either a thermal oxidizer or by a combination of a concentrator followed by a thermal oxidizer. The concentrator may be either a carbon adsorber or zeolite-based system. The VOC emissions from ALDT guide coat operations are generated from the evaporation of solvent in the guide coat spray booth, flash off zone, and curing oven.
The current ALDT NSPS guide coat limit in 40 CFR 60.392 is 1.40 kg VOC/l acs (11.7 lb VOC/gal acs) and was based on the use of waterborne or solvent borne guide coats without the use of add-on controls. According to facility operating permits, 14 facilities with 31 guide coat lines (including some anti-chip coatings that are used in addition to the guide coat) are subject to more stringent guide coat limits than the current ALDT NSPS limit. Three facilities with guide coating limits more stringent than the ALDT NSPS are using powder coating for the guide coating operation, according to the operating permits collected and reviewed by the EPA. The guide coat emission limits more stringent than the current ALDT NSPS guide coat limits range from 0.060 to 1.21 kg VOC/l acs (0.050 to 10.11 lb VOC/gal acs); and 27 of the 31 guide coat lines were subject to limits less than or equal to 0.69 kg VOC/l acs (5.5 lb VOC/gal acs). As a result of the information and findings described above, we evaluated four regulatory options that are more stringent than the current ALDT NSPS for guide coat operations. The regulatory options include the use of add-on controls for waterborne or solvent borne guide coat operations or using a powder coating system instead of a liquid coating system.
The first option evaluated in the ALDT NSPS review is a numerical VOC emission limit of 0.57 kg VOC/l acs (4.8 lb VOC/gal acs) to reflect use of solvent borne or waterborne guide coat and an RTO with 95 percent DRE on the guide coat oven only and no add-on controls for the guide coat spray booth or heated flash off zone exhausts. The limit of 0.57 kg VOC/l acs (4.8 lb VOC/gal acs) was selected to represent this option because it is the most common numerical permit limit in the range of 0.41 to 0.66 kg VOC/l acs (3.46 to 5.5 lb VOC/gal acs) matching the operating permit limit for 9 facilities with this control scenario. We estimate this option would reduce emissions from a typical guide coat operation by about 40 tpy of VOC at a cost of $4,400 per ton of VOC reduced.
The second option is a numerical VOC emission limit of 0.35 kg VOC/l acs (2.92 lb VOC/gal acs) to reflect the use of solvent borne guide coat and 95 percent control of the spray booth and oven with either a carbon adsorber and an RTO or a concentrator and an RTO. The carbon adsorber/concentrator is used to control the spray booth emissions and routes the concentrated exhaust stream to the RTO, which also controls the oven emissions. One facility meeting this limit, in addition to using a concentrator, recirculates 85 percent of the exhaust air in the spray booth back to the booth and 15 percent of the exhaust is sent to concentrator and then to the RTO, which also controls the oven emissions. This second option matches the presumptive BACT emission limit for 2020 identified by the EPA Region 5.
The third option is a numerical VOC emission limit of 0.036 kg VOC/l acs (0.30 lb VOC/gal acs) to reflect the use of a waterborne guide coat applied in a 3-wet process for one facility. In a 3-wet process the guide coat operation and the topcoat operation are combined, and the guide coat oven is basically eliminated. The 3-wet process consists of a series of two separate booths with heated flash off zones for partial cure (one for the guide coat and one for the basecoat), followed by a clearcoat booth, a flash zone, and a topcoat oven (where the guide coat, the basecoat, and the topcoat are fully cured). The 3-wet process uses a heated flash off zone in place of the guide coat oven resulting in less emissions from the guide coat operation, and a more efficient process in terms of time and energy savings for the facility. A 3-wet process reportedly can lower a plant's energy consumption by 30 percent and reduce the total amount of process time per vehicle by 80 minutes for a 40 percent increase in productivity.
Only one facility (with two lines) uses this 3-wet process for the guide coat operation and is subject to this numerical permit limit (0.036 kg VOC/l acs (0.30 lb VOC/gal acs)). We estimate this configuration would reduce emissions from a typical guide coat operation by about 73 tpy of VOC at a cost of $3,252 per ton of VOC reduced. The costs associated with this option are for controlling the heated flash zone emissions with an RTO with 95 percent DRE. Although this third option is cost-effective when considering the cost of controls, the emission limit cannot be achieved without reconfiguring the guide coat operation to eliminate a major component (the guide coat oven), which would be a major capital investment and not cost effective for the purposes of this analysis. Therefore, the EPA is not proposing this option.
The fourth option we considered is a numerical VOC limit of 0.016 kg VOC/l acs (0.13 lb VOC/gal acs) to reflect the use of powder guide coat, instead of a liquid coating. One facility is meeting an emission limit of 0.016 kg VOC/l acs (0.13 lb VOC/gal acs) and three facilities are meeting a lower emission limit (no emission limit (0 kg VOC/l acs) or 0.006 kg VOC/l acs; no emission limit (0 lb VOC/gal acs) or 0.05 lb VOC/gal acs) based on the use of powder guide coat and no controls. The powder coating is applied electrostatically and is essentially a non-emitting process because the dry powder coating has no solvent. Guide coat operations using powder coatings emit virtually no VOCs from the booth, flash off zone(s), or curing oven. The use of powder for the guide coat operation could eliminate all VOC emissions from a typical guide coat operation with no on-going control costs and could be the best environmental outcome. However, as discussed in the memorandum titled
After consideration of all guide coat options, the EPA is proposing to revise the VOC limit for the guide coat operation. The proposed VOC limit reflects the EPA's determination that Option 2, the use of solvent borne guide coat and 95 percent control of the spray booth and oven with either a carbon adsorber and an RTO or a concentrator and an RTO, represents the updated BSER for guide coat operation. The proposed revised standard would limit VOC emissions from guide coat operations to 0.35 kg VOC/l acs (2.92 lb VOC/gal acs). Option 2 provides higher emission reductions than Option 1 and the same range of cost-effectiveness. This option also represents the lower range of emission limits for facilities using solvent borne guide coats. Current facility permits and industry supplied data collected by the EPA for the 2008 ALDT CTG show that solvent borne guide coats are used by three-quarters of the facilities using liquid coatings. The proposed emission limit corresponding to Option 2 is adequately demonstrated by three of 44 plants. The EPA is not proposing limits based on the third and fourth options because they are cost prohibitive.
In conclusion, based on our review, we are proposing in a new subpart (subpart MMa) a VOC emission limit of 0.35 kg VOC/l acs (2.92 lb VOC/gal acs) to reflect the use of solvent borne guide coat and 95 percent control of the spray booth and oven with either a carbon adsorber and an RTO or a concentrator and an RTO for guide coat operations that commence construction, reconstruction, or modification after May 18, 2022.
Topcoat operations use two different coatings, a pigmented basecoat followed by a clearcoat (which can be tinted). For the basecoat, facility operating permits show that facilities use either a waterborne or solvent borne coatings. For the clearcoat, solvent borne coatings are preferred and are used by all ALDT facilities in the U.S. According to data collected for the 2008 ALDT CTG, about half the facilities were using waterborne base coats and about half were using solvent borne base coats, and all facilities were using solvent borne clear coats.
Today's topcoat operations have several configurations. Some facilities have traditional topcoat operations similar to the guide coat operation and consist of a single spray booth, followed by a flash off zone and a topcoat oven. Topcoat operations using solvent borne basecoat and solvent borne clearcoat use this configuration to apply the coatings “wet-on wet” (2-wet) in the same spray booth.
Other topcoat operation configurations use separate booths to apply the basecoat and the clearcoat before the vehicle body travels thru a flash off zone and the topcoat oven. Topcoat operations using separate booths also include a heated flash off zone after the basecoat booth for a partial cure of the basecoat, in which some of the solvent is evaporated, before the clearcoat is applied in the clearcoat booth. After the clearcoat is applied, the vehicle body travels thru a flash off zone and a topcoat oven where the basecoat and the topcoat are fully cured. This configuration divides the traditional topcoat operation into separate emission sources and introduces an additional emission source (basecoat flash off zone). Today most facilities use separate booths to apply the basecoat and clearcoat.
The third topcoat configuration is the 3-wet process, which is a combination of the guide coat (or functional basecoat) and the topcoat operations. As discussed above in the guide coat option section, the 3-wet process consists of a series of two separate booths with heated flash off zones for partial cure of the guide coat and basecoat, followed by a clearcoat booth, a flash zone, and a topcoat oven (where the guide coat, the basecoat, and the topcoat are fully cured). This configuration also divides the traditional topcoat operation into two separate booths and introduces an additional emission source (basecoat flash off zone). In addition, the resulting VOC emissions in the topcoat oven are greater and are comprised of emissions from the partially cured guide coat and base coat and uncured topcoat.
The VOC emissions from ALDT topcoat operations are emitted from the spray booths, the flash off zones and the ovens from the evaporation of solvent from the basecoat and the clear coat. Most ALDT facilities control the VOC emissions from the topcoat spray booths and flash off areas with either a thermal oxidizer or a combination of a concentrator followed by a thermal oxidizer. The concentrator may be either carbon adsorber or zeolite-based system. Most ALDT facilities control the VOC emissions from the topcoat oven with a thermal oxidizer.
The current ALDT NSPS topcoat limit is based on the application of topcoat in one booth and either on the use of waterborne topcoats (waterborne base coat and clearcoat) with no control of the VOC emissions or the use of solvent borne topcoats (solvent borne basecoat and clearcoat) with control of the topcoat booth and oven with a thermal or catalytic oxidizer.
According to facility operating permits, 20 facilities are operating about 25 topcoat lines that are subject to more stringent topcoat limits than the current ALDT NSPS limit of 1.47 kg VOC/l acs (12.3 lb VOC/gal acs). The limits more stringent than the current ALDT NSPS range from 0.28 to 1.44 kg VOC/l acs (2.32 to 12.0 lb VOC/gal acs). As a result of the information and findings described above, we evaluated two regulatory options that are more stringent than the current ALDT NSPS for topcoat operations. The regulatory options include the use of add-on controls for both waterborne and solvent borne basecoats and the use of add-on controls for solvent borne clear coats.
The first option evaluated in the ALDT NSPS review for topcoat operations is based on facilities demonstrating control of the clear coat spray booth and the topcoat oven to meet a topcoat limit of 0.62 kg VOC/l acs (5.20 lb VOC/gal acs). The add-on controls used by facilities demonstrating these emission limits include a thermal
The second option considered by the EPA is based on facilities demonstrating control of the basecoat spray booth and/or the basecoat flash zone, as well as the clearcoat spray booth and topcoat oven to meet a topcoat operation limit of 0.42 kg VOC/l acs (3.53 lb VOC/gal acs). The add-on controls used by facilities demonstrating these emission limits (are the same as in the first option) include an include a thermal oxidizer, usually an RTO achieving 95 percent control of the captured emissions and a concentrator, such as a carbon adsorber or rotary carbon adsorber before the RTO. For this second option, the emissions from the basecoat spray booth and/or the basecoat flash zone would be sent to a concentrator before going to the RTO. This option is based on two facilities operating three coating lines and demonstrating control of the basecoat spray booth and/or flash zone, as well as the clearcoat booth and topcoat oven to meet a topcoat operation limit of 0.42 kg VOC/l acs (3.53 lb VOC/gal acs). We estimated that this option would reduce emissions from a typical topcoat operation by 160 tpy of VOC at a cost of $7,900 per ton of VOC reduced.
After consideration of the two topcoat options, the EPA is proposing to revise the VOC limit for the topcoat operation. The proposed VOC limit reflects the EPA's determination that, Option 2, the control the basecoat spray booth and/or the basecoat heated flash zone, as well as the clear coat booth and the topcoat oven with an RTO or a combination of a concentrator and RTO with the RTO achieving 95 percent control of the captured emissions represents the updated BSER for topcoat operations. The proposed revised standard will limit VOC emissions from topcoat operations to 0.42 kg VOC/l acs (3.53 lb VOC/gal acs). Option 2 would provide greater emission reductions than Option 1 and is cost-effective. This option also represents the lower range of emission limits for facilities using solvent borne basecoat and clearcoats and this emission limit matches the presumptive BACT emission limit for 2020 identified by EPA Region 5.
In conclusion, based on our review, we are proposing in a new subpart (subpart MMa) a VOC emission limit of 0.42 kg VOC/l acs (3.53 lb VOC/gal acs) to reflect control of the basecoat booth and/or the basecoat flash off zone, as well as the clear coat booth and the topcoat oven with an RTO or a combination of a concentrator/RTO, with the RTO achieving 95 percent control of the captured emissions for topcoat operations that commence construction, reconstruction, or modification after May 18, 2022.
CAA section 111(h)(1) authorizes the Administrator to promulgate “a design, equipment, work practice, or operational standard, or combination thereof” if in his or her judgment, “it is not feasible to prescribe or enforce a standard of performance.” CAA section 111(h)(2) provides the circumstances under which prescribing or enforcing a standard of performance is “not feasible,” such as, when the pollutant cannot be emitted through a conveyance designed to emit or capture the pollutant, or when there is no practicable measurement methodology for the particular class of sources.
The ALDT NSPS does not currently regulate fugitive VOC emissions from the storage, mixing, and conveying of VOC-containing materials that include the coatings, thinners, and cleaning materials used in, and waste materials generated by the prime coat, guide coat and topcoat operations. It also does not regulate fugitive VOC emissions from the cleaning and purging of equipment. The results of our review did not identify any ALDT facilities demonstrating control of these fugitive VOC emissions. The fugitive VOC emissions are from various sources and activities located throughout the ALDT facility and are generally released into the ambient air inside the facility. Further, it would not be cost effective for the purposes of this analysis due to the major capital investment associated with routing these VOC emissions from various locations throughout the ALDT facility to capture and control systems.
The sources of fugitive VOC emissions include containers for VOC-containing materials used for wipe down operations and cleaning; spills of VOC-containing materials; the cleaning of spray booth interior walls, floors, grates and spray equipment; the cleaning of spray booth exterior surfaces; and the cleaning of equipment used to convey the vehicle body through the surface coating operations. The ALDT NESHAP lists work practices to minimize fugitive organic HAP emissions in § 63.3094. The work practices include VOC minimizing practices for these sources including: The use of low-VOC and no-VOC alternatives; controlled access to VOC-containing cleaning materials, capture and recovery of VOC-containing materials, use of high-pressure water systems to clean equipment in the place of VOC-containing materials; masking of spray booth interior walls, floors, and spray equipment to protect from over spray; and use of tack wipes or solvent moistened wipes. The ALDT NESHAP work practice provisions require sources to develop and implement a work practice plan to minimize VOC emissions from the storage, mixing, and conveying of coatings, thinners, and cleaning materials used in, and waste materials generated by the prime coat, guide coat and topcoat operations. They also require sources to develop and implement a work practice plan to minimize organic HAP emissions from cleaning and from purging of equipment associated with the prime coat, guide coat and topcoat operations.
The EPA considers the ALDT NESHAP work practices to reflect the best technological system of continuous emission reduction for controlling fugitive emissions of VOC from these sources. We are therefore proposing to include in ALDT NSPS subpart MMa work practices that are consistent with the work practice provisions in the ALDT NESHAP subpart IIII to limit fugitive VOC emissions. We anticipate that adding these work practice requirements to the ALDT NSPS would cause minimal impacts to the industry because we expect all 44 ALDT facilities identified in this action will be subject to the ALDT NESHAP subpart IIII by 2022. Facilities demonstrating compliance with the ALDT NESHAP subpart IIII work practice provisions will be in compliance with these same requirements in the revised ALDT NSPS subpart MMa.
Operations for surface coating of plastic body components or all-plastic automobile or light-duty truck bodies on separate coating lines are exempt from the current ALDT NSPS, subpart MM. See 40 CFR 60.390(b). This exemption was added to subpart MM as a result of two public comments and data documenting the significant problems
During our review of facility operating permits, we found that one facility uses waterborne and solvent borne coatings on all-plastic bodies and is not subject to the ALDT NSPS due to this exemption. The surface coating operations for all-plastic bodies for this facility are instead subject to state VOC RACT rules for the surface coating of plastic parts (discussed below). At all other ALDT facilities the state VOC RACT rules apply to the coating of plastic components coated separately from the vehicle body. Therefore, we are proposing a revision of the plastic parts exemption so that ALDT NSPS subpart MMa applies to the coating of all vehicle bodies, including all-plastic vehicle bodies to be consistent with the original intent of the ALDT NSPS and the requirements for other ALDT facilities.
One facility has adequately demonstrated the surface coating of all-plastic bodies with waterborne coatings, so the exemption for coating all-plastic bodies is no longer justified. Therefore, we are proposing in a new subpart (subpart MMa) removal of the exemption for surface coating of all-plastic vehicle bodies for operations that commence construction, reconstruction, or modification after May 18, 2022. The EPA is aware of only one plant that currently coats all-plastic vehicle bodies and does not expect this facility to become subject to the revised ALDT NSPS over the next 8 years due to recent upgrades made to the plant's surface coating operations.
In this proposal, we are not proposing to remove the exemption with respect to the coating of plastic components coated separately from the vehicle body. Plastic components coated separately from the vehicle body are subject to state VOC RACT rules in accordance with recommendations in the 2008 CTG for Miscellaneous Metal and Plastic Parts Coatings (EPA-453/R-08-003, September 2008) and to the Plastic Parts and Products Surface Coating NESHAP (40 CFR, subpart PPPP) which regulates the organic HAP.
The new source performance standards developed under CAA section 111 are required to reflect the best system of emission reduction under conditions of proper operation and maintenance. For the NSPS review, the EPA also evaluates and determines the proper testing, monitoring, recordkeeping and reporting requirements needed to ensure compliance with the performance standards. As discussed above, other regulatory actions pursuant to CAA sections 112 and CAA 183(e) were promulgated subsequent to the ALDT NSPS that also regulate or otherwise address emissions from ALDT surface coating operations. These regulatory actions include: The 2004 ALDT NESHAP (40 CFR part 63, subpart IIII (69 FR 2262, April 26, 2004), the 2008 ALDT CTG (EPA-453/R-08-006, September 2008) and the 2020 RTR amendments to the ALDT NESHAP (85 FR 41100, July 8, 2020). Although the resulting ALDT NESHAP and ALDT CTG requirements cannot be compared directly to the ALDT NSPS due to the differences in CAA authorities, pollutants, emission limits and format, they apply to the same coating materials and operations and were therefore considered in our review. All ALDT facilities are currently subject to and demonstrating compliance with the ALDT NESHAP requirements.
As a result of our review, we are proposing to revise the ALDT NSPS to match the ALDT NESHAP capture and control devices and the associated testing, monitoring, and reporting requirements. We anticipate that adding these requirements to the ALDT NSPS will cause minimal impacts to the industry because all ALDT facilities are currently subject to and demonstrating compliance with the ALDT NESHAP subpart IIII. These requirements will provide for more robust testing, monitoring and reporting than is required in the current ALDT NSPS, and will align the ALDT NSPS and the ALDT NESHAP testing, monitoring and reporting requirements. Facilities that are in compliance with the ALDT NESHAP requirements will also be in compliance with the revised ALDT NSPS MMa requirements, as discussed in the sections below. The proposed updates are described briefly below.
The ALDT NSPS subpart MM lists thermal incineration and catalytic incineration as the technologies used to meet to the VOC emission limits. In addition, subpart MM requires temperature measurement devices to be installed, calibrated and maintained according to accepted practice and manufacturer's specifications. To make the revised NSPS subpart MMa consistent with the ALDT NESHAP subpart IIII, we are proposing to update the list of control devices and the corresponding control device compliance requirements so that the revised NSPS MMa would contain the same list of control devices and corresponding requirements as the ALDT NESHAP subpart IIII. In addition to thermal and catalytic oxidizers, we are proposing to add the control devices and operating limits listed in Table 1 to subpart IIII of Part 63—Operating Limits for Capture Systems and Add-On Control Devices (ALDT NESHAP Table 1) to the revised NSPS MMa. The additional control devices include regenerative carbon adsorbers, condensers, and concentrators (including zeolite wheels and rotary carbon adsorbers). We are also proposing the addition of requirements for capture systems that are permanent total enclosures and that are not permanent total enclosures to the revised NSPS MMa to match the ALDT NESHAP requirements.
The ADLT NSPS subpart MM requires affected sources using control devices to meet the VOC limits to install, calibrate, maintain, and operate temperature measurement devices. It also specifies the accuracy of the temperature and requires each temperature measurement device be equipped with a recording device so that a permanent record is produced. We are proposing to revise the provisions for establishing the operating limits for the existing control devices and to add these provisions for new control devices in the revised NSPS subpart MMa to match the ALDT NESHAP requirements at (a) § 63.3093 and NESHAP Subpart IIII Table 1, (b) the provisions for establishing control device operating limits in § 63.3167, and (c) the provisions for the continuous monitoring system installation, operation and maintenance of control devices in § 63.3168. Facilities demonstrating compliance with these ALDT NESHAP subpart IIII requirements will be in compliance
The ADLT NSPS requires an initial performance test to be conducted in accordance with § 60.8(a) and thereafter for each calendar month for each prime coat, guide coat, and topcoat operation to demonstrate compliance with the ALDT NSPS subpart MM. Each monthly calculation is considered to be a performance test to demonstrate compliance with the ALDT NSPS emission limits. The ALDT NSPS also requires the reporting of additional data for the initial performance test or in subsequent performance tests at which destruction efficiency is determined. The ALDT NSPS does not, however, require subsequent performance tests in addition to the initial performance test to determine destruction efficiency. We are proposing to add the periodic testing provisions for control devices to determine destruction efficiency once every five years to match the ALDT NESHAP requirements. Periodic performance tests are used to establish or evaluate the ongoing destruction efficiency of the control device and establish the corresponding operating parameters, such as temperature, which can vary as processes change or as control devices age. We are proposing to align the revised NSPS subpart MMa performance testing requirements with requirements that match the provisions for initial performance testing under the ALDT NESHAP subpart IIII in § 63.3160 and periodic performance testing in § 63.3160(c)(3) to apply to the control devices used for compliance with the emission limits in the revised subpart MMa. We are also proposing to add the control device efficiency requirements to the revised NSPS subpart MMa to match the ALDT NESHAP requirements at section § 63.3166. ALDT facilities demonstrating compliance with these ALDT NESHAP subpart IIII requirements will be in compliance with these same requirements in the revised NSPS subpart MMa.
The NSPS subpart MM provides default transfer efficiency (TE) values representing the overall transfer system efficiency according to the method of coating application and the capture and collection of purge solvent used during color changes. We are proposing to revise these requirements in revised subpart MMa to provide a more accurate measure of transfer efficiency and to make these requirements consistent with the ALDT NESHAP subpart IIII requirements. We are proposing that sources determine the transfer efficiency for each guide coat and topcoat coating using ASTM D5066-91 (Reapproved 2017) or the guidelines presented in “Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-Duty Truck Topcoat Operations,” EPA-453/R-08-002, September 2008. We are also proposing the requirements for transfer efficiency testing on representative coatings and for representative spray booths as described in “Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-Duty Truck Topcoat Operations,” EPA-453/R-08-002, September 2008. We are also proposing that sources can assume 100-percent transfer efficiency for prime coat EDP operations. ALDT facilities demonstrating compliance with these ALDT NESHAP subpart IIII requirements will be in compliance with these same requirements in the revised NSPS subpart MMa.
The ALDT NSPS subpart MM lists EPA methods used in compliance calculations as EPA Methods 1, 2, 3, 4, 24, and 25 of 40 CFR part 60, appendix A and “any equivalent or alternative methods.” In order to meet the new testing, monitoring, and reporting provisions described above, additional the EPA reference methods and alternative methods (for IBR) are proposed for the revised NSPS MMa to be consistent with the ALDT NESHAP compliance calculations. In addition to these EPA methods and alternative methods we are proposing to add other methods specific to automotive coatings and the panel testing procedure in
In its 2008 decision in
The EPA has attempted to ensure that the general provisions we are proposing to override are inappropriate, unnecessary, or redundant in the absence of the SSM exemption. We specifically seek comment on whether we have successfully done so.
In proposing the standards in this rule, the EPA has taken into account startup and shutdown periods and, for the reasons explained below, has not proposed alternate standards for those periods. We discussed the need for alternative standards with industry representatives during the recent development of amendments to ALDT NESHAP 40 CFR 63 subpart IIII and no issues were identified and there are no data indicating problems during periods of startup and shutdown. The primary control devices used to control VOC emissions for the ALDT surface coating operations are carbon adsorbers, concentrators and thermal oxidizers, which are effective control devices for controlling emissions during startup and shutdown events. With regard to malfunctions, these events are described in the following paragraph.
Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead, they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment. (40 CFR 60.2). The EPA interprets CAA section 111 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 111 standards. Nothing in CAA
The EPA is proposing that owners and operators of ALDT surface coating operations subject to the current and new NSPS at 40 CFR part 60, subparts MM and MMa submit electronic copies of required performance test reports and the excess emissions and continuous monitoring system performance and summary reports, through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). A description of the electronic data submission process is provided in the memorandum
Additionally, the EPA has identified two broad circumstances in which electronic reporting extensions may be provided. These circumstances are (1) outages of the EPA's CDX or CEDRI which preclude an owner or operator from accessing the system and submitting required reports and (2)
The electronic submittal of the reports addressed in this proposed rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. Moreover, electronic reporting is consistent with the EPA's plan
The effective date of the final rule will be the promulgation date, as specified in CAA section 111(b)(1)(B)). Affected sources that commence construction, reconstruction, or modification after May 18, 2022, must comply with all requirements of 40 CFR part 60 subpart MMa, no later than the effective date of the final rule or upon startup, whichever is later.
Affected facilities for which construction, modification, or reconstruction began on or before May 18, 2022 must comply with all
The new NSPS subpart MMa, would achieve an estimated average of 331 tpy reduction of allowable VOC emissions per facility compared to that of the current NSPS subpart MM. Over the first 8 years after the rule is final, we expect an average of two new, reconstructed, or modified facilities per year, or sixteen new affected facilities. We estimate a total VOC emission reduction of 4,160 tpy in the eighth year after the rule is final, compared to the current NSPS subpart MM.
We estimate an average GHG emissions production of 4,474 mtCO2e per year per facility. Over the first 8 years after the rule is final, we expect an average of two new, reconstructed, or modified facilities per year, or sixteen new affected facilities. We estimate a total GHG emission production of 71,584 mtCO2e in the eighth year after the rule is final.
We did not evaluate the environmental impacts of other pollutants such as hydrocarbons (other than VOC), NO
The energy impacts associated with the electricity and natural gas consumption associated with the operation of control devices to meet proposed NSPS subpart MMa include an estimated average electricity consumption of 2.54 million kwh per year per facility and an estimated average natural gas consumption of 48.8 million scf per year per facility compared to that of the current NSPS subpart MM. Over the first 8 years after the rule is final, we expect an average of two new, reconstructed, or modified facilities per year, or sixteen new affected facilities. We estimate a total electricity consumption of 40.6 million kwh and a total natural gas consumption of 780.8 million scf in the eighth year after the rule is final, compared to the current NSPS subpart MM.
We estimate that the annual capital cost of controls to comply with the NSPS subpart MMa will be $6.3 million per year per new facility, or $12.6 million per year for two new facilities in each year in the 8-year period after the rule is final.
We estimate that the average annual cost of controls to comply with the NSPS subpart MMa will be $1.71 million per year per facility, or $3.42 million for two new facilities in each year in the 8-year period after the rule is final. The total cumulative annual costs (including annualized capital costs and O&M costs) of complying with the rule in the eighth year after the rule is final would be $27.34 million.
We estimate that the average cost of the periodic testing of control devices once every 5 years to comply with the NSPS MMa will be $57,000 per facility, or $114,000 for two facilities in the fifth year after the rule is final.
The EPA conducted an economic impact analysis and small business screening assessment for this proposal, as detailed in the memorandum,
While one existing facility is currently owned by a small entity, that facility is in the process of being sold to a company that is not a small entity. Furthermore, that facility is already in compliance with the requirements in this proposed rule, so even if it were to modify or reconstruct and become subject to the proposed subpart MMa, it is not anticipated that it would incur any additional costs as a result. Because the coatings processes are large operations at automobile and light duty truck manufacturing facilities, it is not anticipated that any affected facilities that have exited their initial startup phase would be classified as small entities. Therefore, no economic impacts are expected for small entities. Furthermore, it is assumed that any new entrant into the industry would have sales similar to at least the smallest current ultimate owner, so it is not anticipated that any new ultimate owner would face costs of greater than one percent of sales.
Therefore, the economic impacts are anticipated to be low for affected companies and the industries impacted by this proposal, and there will not be substantial impacts on the markets for affected products. The costs of the proposal are not expected to result in a significant market impact, regardless of whether they are passed on to the purchaser or absorbed by the firms.
As described above, the proposed NSPS subpart MMa would result in lower VOC emissions compared to the existing NSPS subpart MM. The new NSPS subpart MMa would also require that the standards apply at all times, which includes SSM periods. We are also proposing several compliance assurance requirements which will ensure compliance with the new NSPS subpart MMa and help prevent noncompliant emissions of VOC. Furthermore, the proposed requirements in the new NSPS subpart MMa to submit reports and test results electronically will improve monitoring, compliance, and implementation of the rule.
Reducing emissions of VOC is expected to help reduce ambient concentrations of ground level ozone and increase compliance with the National Ambient Air Quality Standards (NAAQS) for ozone. A quantitative analysis of the impacts on the NAAQS in the areas located near ALDT plants would be technically complicated, resource intensive and infeasible to perform in the time available and would not represent the impacts for future new ALDT sources because the locations of new sources are currently unknown. For these reasons, we did not perform a quantitative analysis. However, currently available health effects evidence supporting the December 23, 2020, final decision for the ozone NAAQS continues to support the conclusion that ozone can cause difficulty breathing and other respiratory system effects. For people with asthma, these effects can lead to emergency room visits and hospital admissions. Exposure over the long term may lead to the development of asthma. People most at risk from breathing air containing ozone include people with asthma, children, the elderly, and outdoor workers. For children, ozone in
Consistent with the EPA's commitment to integrating environmental justice in the Agency's actions, and following the directives set forth in multiple Executive Orders as well as CAA section 111(b)(1)(B), the Agency has carefully considered the impacts of this action on communities with environmental justice concerns. This action proposes standards of performance for new, modified, and reconstructed sources that commence construction after the rule is proposed. Therefore, the locations of the new, modified, and reconstructed sources at ALDT surface coating facilities are not known. In addition, it is not known which of the existing ALDT surface coating facilities will modify or reconstruct the affected sources in the future. Therefore, the demographic analysis was conducted for 46 existing facilities (45 operating and one is due to start construction in May 2022) to characterize the demographics in areas where the facilities are currently located. The demographic analysis shows that the percent minority population in close proximity to these facilities is higher than the national average (49 percent versus 40 percent). Within minorities, the percent of the population that is African American is significantly higher than the national average (27 percent versus 12 percent). All other minority demographics are similar to or below the corresponding national averages. The percent of people living below the poverty level is significantly higher than the national average (22 percent versus 13 percent). The percent of people over 25 without a high school diploma is also higher than the national average (15 percent versus 12 percent). The percentage of the population living in linguistic isolation is similar to the national average (6 percent versus 5 percent). The EPA particularly noted community impacts and concerns in some areas of the country that have a larger percentage of sources. A large percentage of the sources in the Auto and Light Duty Truck Surface Coating source category are located in EPA Region 5 states and of those states, most sources are located in the state of Michigan. Most, if not all the counties where these sources are located are designated as ozone non-attainment areas. For this reason, we engaged with EPA Region 5 and the state of Michigan as part of this rulemaking.
The EPA expects that this ALDT NSPS review will result in significant reductions of VOC emissions from the affected sources. The new emission limits proposed for this action reflects the best system of emission reduction demonstrated and establishes a new more stringent standard of performance for the primary sources of VOC emissions from the source category. The EPA expects the proposed requirements in subpart MMa will result in significant reductions of VOC emissions for communities surrounding new, modified and reconstructed affected sources compared to the existing rule in subpart MM and will result in less VOC emissions for communities located in areas designated as ozone non-attainment areas. These areas are already overburdened by pollution, and are often minority, low-income and indigenous communities. Following is a more detailed description of how the Agency considers environmental justice (EJ) in the context of regulatory development, and specific actions taken to address EJ concerns for this action.
Executive Order 12898 directs the EPA to identify the populations of concern who are most likely to experience unequal burdens from environmental harms; specifically, minority populations, low-income populations, and indigenous peoples (59 FR 7629, February 16, 1994). Additionally, Executive Order 13985 is intended to advance racial equity and support underserved communities through Federal government actions (86 FR 7009, January 20, 2021). The EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”
When practicable, the EPA begins its environmental justice analysis by first identifying stakeholders who may be disproportionately impacted by the pending regulatory action. An assessment of populations in close proximity to sources helps the EPA in considering outreach and engagement strategies. For this action, we performed a demographic analysis, which is an assessment of individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. The EPA then compared the data from this analysis to the national average for each of the demographic groups.
As stated above, this action proposes standards of performance for new, modified, and reconstructed sources that commence construction after the rule is proposed. Therefore, the locations of the construction of new Auto and Light Duty Truck Surface Coating affected sources are not known. In addition, it is not known which of the existing Auto and Light Duty Truck Surface Coating affected sources will be modified or reconstructed in the future. Therefore, the demographic analysis was conducted for all 46 existing facilities as a characterization of the demographics in areas where these facilities are now located.
The results of the demographic analysis (Table 1) indicate that, for populations within 5 km of the 46 facilities in the source category, the percent minority population (being the total population minus the white population) is higher than the national average (49 percent versus 40 percent). Within minorities, the percent of the population that is African American is significantly higher than the national average (27 percent versus 12 percent). All other minority demographics are at or below the corresponding national averages. The percent of people living below the poverty level is significantly higher than the national average (22 percent versus 13 percent). The percent of people over 25 without a high school diploma is also higher than the national average (15 percent versus 12 percent). The percentage of the population living in linguistic isolation is similar to the national average (6 percent versus 5 percent).
At a 50 km radius of sources, the results of the demographic analysis (Table 1) indicate that the percent minority population is similar to the national average (41 percent versus 40 percent). Within minorities, the percent African American (17 percent) and the percent Other/Multiracial (9 percent) populations are higher than the national averages (12 percent and 8 percent, respectively). All other minority demographics are below the
A summary of the demographic assessment performed for facilities affected by the NSPS for ALDT surface coating operations is included as Table 1. The methodology and the results of the demographic analysis are presented in a technical report titled,
The EPA expects that this action will result in significant reductions of VOC emissions from the affected sources for all communities, including communities potentially overburdened by pollution, which are often minority, low-income and indigenous. The proposed new NSPS will have beneficial effects on air quality and public health both locally and regionally. Further, this rulemaking complements other actions already taken by the EPA to reduce emissions and improve health outcomes for overburdened and underserved communities.
We solicit comments on all aspects of this proposed action, especially the proposed emission limits, the cost-effectiveness estimates, and other impacts. We also encourage commenters to include data to support their comments. We invite comments on the benefits summary and welcome any data on these or other impacts associated with VOCs from ALDT sources. We are also interested in comments and information related to the practices, processes, and control technologies to reduce VOC emissions from surface coating operations at ALDT facilities.
The EPA proposes to amend the 40 CFR 60.17 to incorporate by reference the following VCS:
• ANSI/ASME, PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus]” is a manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas and is proposed as an alternative to EPA Method 3B manual portion only and not the instrumental portion.
• ASTM D6420-18, “Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography/Mass Spectrometry” is a test method that can be used to determine the mass concentration of VOC and is proposed as an alternative to EPA Method 18 only when the target compounds are all known, and the target compounds are all listed in ASTM D6420-18 as measurable. This method should not be used for methane and ethane (because atomic mass is less than 35) and it should never be specified as a total VOC method.
• ASTM Method D6093-97 (Reapproved 2016) “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer” is a test method that can be used to determine the percent volume of nonvolatile matter in clear and pigmented coatings and is proposed as an alternative to EPA Method 24.
• ASTM D2369-10 (Reapproved 2015)e1, “Test Method for Volatile Content of Coatings” is a test method that allows for more accurate results for multi-component chemical resistant coatings and is proposed as an alternative to EPA Method 24.
• ASTM Method D2697-03 (Reapproved 2014), “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings” is a test method that can be used to determine the volume of nonvolatile matter in clear and pigmented coatings and is proposed as an alternative to EPA Method 24.
• The “Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-Duty Truck Topcoat Operations,” EPA-453/R-08-002, September 2008, are procedures for combining analytical VOC content and formulation solvent content and are proposed as an alternative to EPA Method 24.
• ASTM D1475-13 “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products” is a test method that can be used to determine the density of coatings and the updated version of the test method clarifies units of measure and reduces the number of determinations required.
• ASTM D5965-02 (Reapproved 2013) test method A or test method B “Standard Test Methods for Specific Gravity of Coating Powders” are test methods that can be used to determine the specific gravity of powder coatings.
• ASTM D5066-91 (Reapproved 2017) “Standard Test Method for Determination of the Transfer Efficiency Under Production Conditions for Spray Application of Automotive Paints-Weight Basis” is a procedure to measure the transfer efficiency of spray coatings.
• ASTM D5087-02 “Standard Test Method for Determining Amount of Volatile Organic Compound (VOC) Released from Solventborne Automotive Coatings and Available for Removal in a VOC Control Device (Abatement)” is a procedure to measure solvent loading for the heated flash zones and bake ovens for waterborne coatings.
• ASTM D6266-00a (Reapproved 2017) “Test Method for Determining the Amount of Volatile Organic Compound (VOC) Released from Waterborne Automotive Coatings and Available for Removal in a VOC Control Device (Abatement)” is also a procedure to measure solvent loading for heated flash zones and bake ovens for waterborne coatings.
ASTM D5066-91 (Reapproved 2017) is cited in the proposed rule as an acceptable procedure to measure the transfer efficiency of spray coatings. ASTM D5087-02 and ASTM D6266-00a (Reapproved 2017) are cited in the proposed rule as acceptable procedures to measure solvent loading (similar to capture efficiency) for the heated flash zone for waterborne basecoats and for bake ovens. Currently, no EPA methods are available to measure transfer efficiency or solvent release potential from automobile and light-duty truck coatings in order to determine the potential solvent loading from the coatings used.
We also identified VCS ASTM D2111-10 (2015), “Standard Test Methods for Specific Gravity of Halogenated Organic Solvents and Their Admixtures” as an acceptable alternative to EPA Method 24. This ASTM standard can be used to determine the density for the specific coatings (halogenated organic solvents) cited using Method B (pycnometer) only (as in ASTM 1217). We are not proposing this VCS because ALDT surface coating operations do not use halogenated organic solvents, based on our knowledge of the industry.
EPA-453/R-08-002 is available online at
ANSI/ASME, PTC 19.10-1981 is available from the American Society of Mechanical Engineers (ASME), Two Park Avenue, New York, NY 10016-5990, Telephone (800) 843-2763. See
The ASTM standards are available from the American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959. See
Additional information about these statutes and Executive Orders can be found at
Although this action is not economically significant, it was submitted to the Office of Management and Budget (OMB) for review. An economic impact analysis (EIA) was prepared for this action and is available in the docket. Any changes made in response to OMB recommendations have also been documented in the docket.
The information collection activities in this action have been submitted for approval to OMB under the PRA.
The Information Collection Request (ICR) document for MM has been assigned EPA ICR number 1064.20 and the ICR document for MMa has been assigned EPA ICR number 2714.01. You can find a copy of both ICR in the ALDT NSPS Docket No. EPA-HQ-OAR-2021-0664, and they are briefly summarized here. Each ICR is specific to information collection associated with the ALDT surface coating source category, either through the revised 40 CFR part 60, subpart MM or through the new 40 CFR part 60, subpart MMa.
For the revised 40 CFR part 60, subpart MM, as part of the ALDT NSPS review, the EPA is proposing to include the requirement for electronic submittal of reports.
For the new 40 CFR part 60, subpart MMa, as part of the ALDT NSPS review, the EPA is proposing to revise the emission limit requirements and is adding new work practices for new, modified and reconstructed sources. We are proposing changes to the testing, recordkeeping and reporting requirements associated with 40 CFR part 60, subpart MMa, in the form of requiring performance tests every 5 years and including the requirement for electronic submittal of reports. This information is being collected to assure compliance with 40 CFR part 60, subpart MMa.
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 OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. Details of this analysis are presented in the
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. While this action creates an enforceable duty on the private sector, the cost does not exceed $100 million or more.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. It will neither impose substantial direct compliance costs on Federally recognized Tribal governments, nor preempt Tribal law, and does not have substantial direct effects 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, as specified in E.O. 13175 (65 FR 67249, November 9, 2000). No tribal facilities are known to be engaged in the industry that would be affected by this action nor are there any adverse health or environmental effects from this action. However, the EPA conducted a proximity analysis for this source category and found that six auto and light duty truck assembly plants are located within 50 miles of Tribal lands. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, the EPA will offer consultation with Tribal officials during the development of this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.
This action is not a “significant regulatory action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.
This rulemaking involves technical standards. Therefore, the EPA conducted searches through the Enhanced NSSN Database managed by the American National Standards Institute (ANSI) to determine if there are
During the search, if the title or abstract (if provided) of the VCS described technical sampling and analytical procedures that are similar to the EPA's reference method, the EPA considered it as a potential equivalent method. All potential standards were reviewed to determine the practicality of the VCS for this rule. This review requires significant method validation data which meets the requirements of the EPA Method 301 for accepting alternative methods or scientific, engineering and policy equivalence to procedures in the EPA reference methods. The EPA may reconsider determinations of impracticality when additional information is available for particular VCS. As a result, the EPA proposes to amend 40 CFR 60.17 to incorporate by reference (IBR) the following VCS:
• ANSI/ASME, PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus]” as an alternative to EPA Method 3B manual portion only and not the instrumental portion.
• ASTM D6420-18, “Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography/Mass Spectrometry” as an alternative to EPA Method 18 only when the target compounds are all known, and the target compounds are all listed in ASTM D6420-18 as measurable. This method should not be used for methane and ethane (because atomic mass is less than 35) and it should never be specified as a total VOC method.
• ASTM Method D6093-97 (Reapproved 2016) “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer” as an alternative to EPA Method 24.
• ASTM D2369-10 (Reapproved 2015) e1, “Test Method for Volatile Content of Coatings” as an alternative to EPA Method 24.
• ASTM Method D2697-03 (Reapproved 2014), “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings” as an alternative to EPA Method 24.
• Guidelines for combining analytical VOC content and formulation solvent content presented in “Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-Duty Truck Topcoat Operations,” EPA-453/R-08-002, September 2008, as an alternative to EPA Method 24.
In addition to the VCS identified for EPA reference methods, we propose to amend 40 CFR 60.17 to IBR the following ASTM methods for ALDT coatings:
• ASTM D1475-13 “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products.”
• ASTM D5965-02 (Reapproved 2013) test method A or test method B “Standard Test Methods for Specific Gravity of Coating Powders.”
• ASTM D5066-91 (Reapproved 2017) “Standard Test Method for Determination of the Transfer Efficiency Under Production Conditions for Spray Application of Automotive Paints-Weight Basis.”
• ASTM D5087-02 “Standard Test Method for Determining Amount of Volatile Organic Compound (VOC) Released from Solventborne Automotive Coatings and Available for Removal in a VOC Control Device (Abatement).”
• ASTM D6266-00a (Reapproved 2017) “Test Method for Determining the Amount of Volatile Organic Compound (VOC) Released from Waterborne Automotive Coatings and Available for Removal in a VOC Control Device (Abatement).”
Additional information for the VCS search and determinations can be found in the memorandum,
Under 40 CFR 60.8(b) and 60.13(i) of subpart A of the General Provisions, a source may apply to the EPA to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications or procedures in the final rule or any amendments. The EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable VCS and to explain why such standards should be used in this regulation.
This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is contained in section V.C and V.E of this preamble. As discussed in section V.E of this preamble, we performed a demographic analysis for the automobile and light duty truck surface coating source category, which is an assessment of the proximity of individual demographic groups living close to the facilities (within 50 km and within 5 km). Results of the demographic analysis indicate that the following groups above the national average: African Americans, People Living Below the Poverty Level, and People without a High School Diploma.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA or the “Agency”) is proposing full approval of revisions to the South Dakota operating permit program for stationary sources under the Clean Air Act (CAA), title V (the “title V program”) and a Clean Air Act (CAA) section 111(d)/129 negative declaration for incinerators subject to the Hospital/Medical/Infectious Waste Incinerators (HMIWI) Emissions Guidelines. EPA is proposing this action in accordance with the CAA.
Written comments must be received on or before June 17, 2022.
Submit your comments, identified by Docket ID No. EPA-R08-
Carson Coate, Air and Radiation Division, EPA, Region 8, Mail code 8ARD, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number: (406) 457-5042, email address:
Throughout this document “we,” “us,” and “our” means EPA. In the Final Rules section of this
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Beverages, Carbon monoxide, Chemicals, Coal, Electric power plants, Fluoride, Gasoline, Glass and glass products, Grains, Greenhouse gases, Hazardous substances, Household appliances, Industrial facilities, Insulation, Intergovernmental relations, Iron, Labeling, Lead, Lime, Metals, Motor vehicle pollution, Natural gas, Nitrogen dioxide, Petroleum, Phosphate, Plastics materials and synthetics, Polymers, Reporting and recordkeeping requirements, Rubber and rubber products, Sewage disposal, Steel, Sulfur oxides, Vinyl, Volatile organic compounds, Waste treatment and disposal, Zinc.
Environmental protection, Administrative practice and procedure, Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous substances, Intergovernmental relations, Mercury, Radioactive materials, Radon, Reporting and recordkeeping requirements, Uranium, Vinyl chloride.
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Industrial facilities, Intergovernmental relations, Methane, Ozone, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds, Waste treatment and disposal.
Environmental protection, Air pollution control, Intergovernmental relations, Title V.
Federal Communications Commission.
Proposed compliance with Alaska Plan; request for comments.
The Wireless Telecommunications Bureau requests comment on requiring mobile-provider participants of the Alaska Plan subject to the drive test requirement to submit new drive-test data if they fail to demonstrate compliance with their approved performance plan.
Comments are due on or before June 1, 2022 and replies are due on or before June 8, 2022.
Interested parties may file comments on or before the date indicated above and must reference WC Docket No. 16-271. Comments may be filed using the Commission's Electronic Filing System (ECFS) or by filing paper copies.
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•
• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19.
For additional information on this proceeding, contact Matthew Warner of the Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division,
This is a summary of the “Request for Comment” portion of the Bureau's Alaska Plan Drive Test Order and Request for Comment, adopted on May 5, 2022, and released on May 5. 2022. The summary of the Order portion is published elsewhere in this issue of the
1. In the Order portion of this document, the Wireless Telecommunications Bureau (Bureau) adopts a drive-test model and parameters for the drive tests that are required of certain mobile providers participating in the Alaska Plan. The Bureau will use these drive-test data to determine whether mobile providers that receive more than $5 million in annual support for the deployment of mobile voice and broadband service in remote areas of Alaska have met their performance commitments. In the Request for Comment portion of this document, we seek comment on a proposal to require mobile-provider participants subject to the drive-test requirement to submit new drive-test data consistent with the drive-test model and parameters if they fail to meet a buildout milestone and later seek to cure a compliance gap.
2. This Request for Comment seeks comment on an approach for mobile providers that receive more than $5 million annually from the Alaska Plan to address compliance gaps under § 54.320(d)(1) of the Commission's rules. Section 54.320(d)(1) establishes a framework to assess any compliance gaps for Alaska Plan mobile providers' commitments. To ensure that mobile providers receiving more than $5 million annually for the Alaska Plan have met their interim milestone commitments, the Commission will analyze the drive test data discussed in this Order, in addition to other data, to determine whether they have any compliance gaps and, if so, the extent of the compliance gap per commitment (
3. To the extent that a mobile-provider participant subject to the drive-test requirement is shown through the results of the testing to have failed to meet its five-year performance requirement, and seeks to cure a compliance gap, we propose to require the provider to submit new drive-test data consistent with the Alaska Drive-Test Model we adopt today. Under this proposal, the provider would submit updated coverage data, including middle-mile data if applicable, whenever it seeks to improve its compliance gap tier until it has less than a 5% compliance gap. Commission staff then would provide new grid cells to test based on this updated coverage data. For example, if a provider that had a compliance gap of 30% (and is thus in Tier 3) reports that it reduced its compliance gap to 10%, which would warrant a move to Tier 1, then the provider would submit its updated coverage and middle-mile data to the Commission. Staff would provide the mobile-provider participant new grid cells to test, consistent with the mobile-provider participant's updated coverage data. The mobile-provider participant would need to provide new drive-test data consistent with the Alaska Drive-Test Model as verifying evidence that it has moved compliance tiers. For a mobile-provider participant with multiple frames (if there is a compliance gap for its fiber-based 4G LTE population, for example), it would need to provide supporting drive-test data for all affected frames. This would ensure that new compliance gaps are not created when other compliance gaps are reduced. We seek comment on this proposal. We also seek comment on whether we should adopt any additional requirements for retesting beyond what is required under the Alaska Drive-Test Model.
4. Finally, as part of the Commission's continuing effort to advance digital equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, we invite comment on any equity-related considerations and benefits (if any) that may be associated with the issues discussed herein. Specifically, we seek comment on how these matters may promote or inhibit advances in diversity, equity, inclusion, and accessibility.
5. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
6. This Request for Comment seeks comment on the drive testing proposals required by the Alaska Plan for those wireless participants receiving more than $5 million in annual Alaska Plan support, excluding the smaller wireless participants that receive less than that in annual support. The proposals, if adopted, would apply to only two entities, one of which does not qualify as a small entity. Therefore, we certify that the proposals in this Request for Comment, if adopted, will not have a significant economic impact on a substantial number of small entities.
7. The Commission will send a copy of the Request for Comment, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. This initial certification will also be published in the
8. This proceeding shall be treated as a “permit-but-disclose” proceeding in
9. Comments. Interested parties may file comments and reply comments on or before the dates indicated on the first page of this document and must reference WC Docket No. 16-271. Comments may be filed using the Commission's Electronic Filing System (ECFS) or by filing paper copies.
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•
• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
○ Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020),
10. People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
11. Additional Information. For additional information on this proceeding, contact Matthew Warner of the Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division,
12.
13.
Farm Service Agency, USDA.
Notification of funding availability.
The Farm Service Agency (FSA) is issuing this notice announcing ERP. ERP will provide assistance to producers for losses to crops, trees, bushes, and vines due to wildfires, hurricanes, floods, derechos, excessive heat, winter storms, freeze (including a polar vortex), smoke exposure, excessive moisture, qualifying drought, and related conditions occurring in calendar years 2020 and 2021. ERP assistance will be provided in two phases. This document provides the eligibility requirements, application process, and payment calculations for ERP Phase 1, which will provide payments for crop production losses and tree, bush, and vine losses calculated using certain data from previously issued crop insurance indemnities and Noninsured Crop Disaster Assistance Program (NAP) payments.
We invite you to submit comments on the information collection request. You may submit comments by any of the following methods, although FSA prefers that you submit comments electronically through the Federal eRulemaking Portal:
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All comments will be posted without change and publicly available on
Tona Huggins; telephone: (202) 720-6825; email:
Division B, Title I, of the Extending Government Funding and Delivering Emergency Assistance Act (Pub. L. 117-43) provides $10 billion for necessary expenses related to losses of:
• Crops;
• Trees;
• Bushes; and
• Vines.
To be eligible for assistance, the loss must be a consequence of one of the following qualifying disaster events occurring in the 2020 or 2021 calendar years:
• Droughts;
• Wildfires;
• Hurricanes;
• Floods;
• Derechos;
• Excessive heat;
• Winter storms;
• Freeze, including a polar vortex;
• Smoke exposure; and
• Excessive moisture.
Losses due to drought are only eligible for assistance if any area within the county in which the loss occurred was rated by the U.S. Drought Monitor as having a D2 (severe drought) for eight consecutive weeks or a D3 (extreme drought) or higher level of drought intensity.
FSA is using the funding to assist producers who suffered eligible losses through several programs.
• ERP Phase 1 will use a streamlined process with pre-filled application forms. It will provide payments for crop production losses and tree, bush, and vine losses in certain situations where data are already on file with FSA or the Risk Management Agency (RMA), as a result of the producer previously receiving a NAP payment or a crop insurance indemnity under certain crop insurance policies. This document provides the eligibility requirements, application process, and payment calculations for ERP Phase 1.
• ERP Phase 2 will provide payments for other eligible losses through a more traditional application process during which eligible producers will provide all data required to calculate a payment. FSA will announce ERP Phase 2 provisions and application period in a future
The definitions in 7 CFR parts 718 and 1400 apply to ERP, except as otherwise provided in this document. The following definitions also apply.
(1) For the 2020 program year, 2016, 2017, and 2018;
(2) For the 2021 program year, 2017, 2018, and 2019; and
(3) For the 2022 program year,
(1) For the 2020 program year, 2016, 2017, and 2018;
(2) For the 2021 program year, 2017, 2018, and 2019; and
(3) For the 2022 program year, 2018, 2019, and 2020.
(1) For insured crops, trees, bushes, and vines, the crop year as defined according to the applicable crop insurance policy; and
(2) For NAP-covered crops, the crop year as defined in 7 CFR 1437.3.
(1) Production of crops, specialty crops, and unfinished raw forestry products;
(2) Production of livestock, aquaculture products used for food, honeybees, and products derived from livestock;
(3) Production of farm-based renewable energy;
(4) Selling (including the sale of easements and development rights) of farm, ranch, and forestry land, water or hunting rights, or environmental benefits;
(5) Rental or lease of land or equipment used for farming, ranching, or forestry operations, including water or hunting rights;
(6) Processing, packing, storing, and transportation of farm, ranch, forestry commodities including renewable energy;
(7) Feeding, rearing, or finishing of livestock;
(8) Payments of benefits, including benefits from risk management practices, crop insurance indemnities, and catastrophic risk protection plans;
(9) Sale of land that has been used for agricultural purposes;
(10) Payments and benefits authorized under any program made available and applicable to payment eligibility and payment limitation rules;
(11) Income reported on Internal Revenue Service (IRS) Schedule F or other schedule used by the person or legal entity to report income from such operations to the IRS;
(12) Wages or dividends received from a closely held corporation, and Interest Charge Domestic International Sales Corporation (IC-DISC) or legal entity comprised entirely of family members when more than 50 percent of the legal entity's gross receipts for each tax year are derived from farming, ranching, or forestry activities as defined in this document; and
(13) Any other activity related to farming, ranching, and forestry, as determined by the Deputy Administrator.
(1) A person whose direct or indirect gross farm sales, based on 2 years, did not exceed:
(a) $180,300 in each of the 2017 and 2018 calendar years for the 2020 program year;
(b) $179,000 in each of the 2018 and 2019 calendar years for the 2021 program year; or
(c) $189,200 in each of the 2019 and 2020 calendar years for the 2022 program year; and
(2) A person whose total household income was at or below the national poverty level for a family of four in each of the same two previous calendar years referenced in paragraph (1) of this definition. Limited resource farmer or rancher status can be determined using a website available through the Limited Resource Farmer and Rancher Online Self Determination Tool through National Resource and Conservation Service at
For an entity to be considered a limited resource farmer or rancher, all members who hold an ownership interest in the entity must meet the criteria in paragraphs (1) and (2) of this definition.
• Excessive wind that occurred as a direct result of a derecho;
• Silt and debris that occurred as a direct and proximate result of flooding;
• Excessive wind, storm surges, tornados, tropical storms, and tropical depressions that occurred as a direct result of a hurricane; and
• Excessive wind and blizzards that occurred as a direct result of a winter storm.
(1) American Indians or Alaskan Natives;
(2) Asians or Asian-Americans;
(3) Blacks or African Americans;
(4) Hispanics or Hispanic Americans;
(5) Native Hawaiians or other Pacific Islanders; and
(6) Women.
(1) Has not operated a farm or ranch for more than 10 years; or
(2) Has obtained status as a veteran (as defined in 38 U.S.C. 101(2)
For an entity to be considered a veteran farmer or rancher, at least 50 percent of the ownership interest must be held by members who have served in the Armed Forces and meet the criteria in paragraph (1) or (2) of this definition.
ERP Phase 1 will provide a streamlined application process for eligible losses during the 2020, 2021, or 2022 crop years
• A Federal Crop Insurance policy that provided coverage for crop production losses or tree losses related to the qualifying disaster events and received an indemnity
• NAP coverage and received a NAP payment for a crop and unit.
ERP Phase 1 excludes losses to aquacultural species that were compensated under the Emergency Assistance for Livestock, Honey Bees, and Farm-raised Fish Program (generally referred to as ELAP) to avoid providing duplicate benefits for losses already at least partially compensated for by ELAP.
The applicable crop insurance policies and NAP provide payments to producers for crop, tree, bush, and vine losses due to eligible causes of loss as defined respectively in the producer's crop insurance policy or NAP, which includes crop production losses and tree losses due to the qualifying disaster events eligible for ERP. Where such an overlap has been identified, RMA and FSA are using certain data submitted by producers for crop insurance or NAP purposes to calculate a producer's eligible loss under ERP Phase 1. The ERP calculation is intended to compensate producers for a percentage of that loss determined by the applicable ERP factor, which varies based on the producer's level of crop insurance or NAP coverage, as described later in this document.
Producers who did not qualify for assistance under Phase 1 who experienced losses to crops, trees, bushes, and vines, will be addressed under ERP Phase 2. Other losses to crops, trees, bushes, and vines will also be addressed under ERP Phase 2.
To be eligible for payment under ERP Phase 1, a producer must have suffered a crop, tree, bush, or vine loss that was caused, in whole or in part, by a qualifying disaster event. Because under certain policies the amount of loss due to a qualifying disaster event cannot be separated from the amount of loss caused by other eligible causes of loss as defined by the applicable crop insurance policy or NAP, the ERP Phase 1 payment will be based on the producer's loss as long as those losses are in whole or in part caused by a qualifying disaster event.
In addition, consistent with other FSA disaster assistance programs, a producer must be a:
(1) Citizen of the United States;
(2) Resident alien, which for purposes of ERP means “lawful alien” as defined in 7 CFR 1400.3;
(3) Partnership consisting of solely of citizens of the United States or resident aliens;
(4) Corporation, limited liability company, or other organizational structure organized under State law consisting solely of citizens of the United States or resident aliens; or
(5) Indian Tribe or Tribal organization, as defined in section 4(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
Eligible crops include all crops for which crop insurance or NAP coverage was available, except for crops intended for grazing.
FSA and RMA will identify the producers who meet the criteria described above to apply for ERP Phase 1. For each of those producers, FSA will generate an FSA-520, Emergency Relief Program (ERP) Phase 1 Application, with certain items pre-filled with information already on file with USDA. A separate application form will be generated for each applicable program year. FSA expects to begin mailing application forms in May to producers who received crop insurance indemnities, and to begin mailing forms to producers who received NAP payments later in the summer. FSA will mail application forms for policy holders with 2021 crop year coverage under Stacked Income Protection (STAX), Supplemental Coverage Option (SCO), Enhanced Coverage Option (ECO), Margin Protection (MP), and Area Risk Protection Insurance (ARPI) when data become available.
For producers who received a crop insurance indemnity for eligible policies, the pre-filled application will include the producer's physical State and county codes, pay unit numbers, crops, and gross indemnities. While the majority of crop insurance policies may cover an eligible crop loss, a small number do not and are not eligible for ERP, including livestock policies and margin policies. Even if a policy is included in ERP Phase 1, the producer will need to certify that their payment under any such policy was in whole or in part due to a crop loss related to a qualifying disaster event. For producers who received a NAP payment, the pre-filled applications will include the producer's administrative State and county codes, unit numbers, crops, pay groups, and gross NAP payments. FSA will also pre-fill the calculated ERP Phase 1 payment amounts, prior to any payment reductions.
Receipt of a pre-filled application form is not a confirmation that the producer is eligible to receive an ERP Phase 1 payment. In order to receive a payment, the producer must certify that their crop insurance indemnity or NAP payment on which the ERP Phase 1 payment will be based was due, in whole or in part, to a crop production loss or a loss of trees, bushes, or vines caused by a qualifying disaster event. Producers are responsible for reviewing the list of qualifying disaster events, and if a loss was due to drought, producers must also ensure that the county where the crop and unit was located meets the definition of “qualifying drought.” FSA will provide a factsheet and other materials to provide examples and more details on the qualifying disaster events to assist producers. In addition, producers must also certify that they will meet the requirement to purchase crop insurance or NAP coverage for the next 2 available crop years, as described later in this document.
The portion of the form for producers who had crop insurance will also list the primary policy holder and all producers with an SBI who have a record established with FSA. If one or more producers with an SBI had a share in a crop, the primary policy holder must update the application to show the share in the crop for each of those producers in addition to the primary policy holder. If determined eligible, any payments will be issued to the primary policy holder and to any producers with an SBI who have a share in the crop according to their shares in the crop entered on the application. To receive a payment, each person or entity that is listed as having a share of the ERP Phase 1 payment for a crop and unit must sign the application and agree to purchase crop insurance or NAP coverage for that crop and unit, as described later in this document. If multiple crops and units are listed on an application, producers may agree to purchase crop insurance or NAP coverage for only some of the crops and units; an ERP Phase 1 payment will be issued only for those crops and units for which the producer agrees to meet that requirement.
Producers, including any producers with an SBI who have a share in a crop as indicted on the application, must also have the following forms on file with FSA by within 60 days of the ERP Phase 1 deadline announced by the Deputy Administrator to receive an ERP Phase 1 payment:
• Form AD-2047, Customer Data Worksheet;
• Form CCC-902, Farm Operating Plan for an individual or legal entity as provided in 7 CFR part 1400;
• Form CCC-901, Member Information for Legal Entities (if applicable); and
• A highly erodible land conservation (sometimes referred to as HELC) and wetland conservation certification as provided in 7 CFR part 12 (form AD-1026 Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification) for the producer and applicable affiliates.
Many producers, especially if they have participated in FSA programs recently, will already have these forms on file with FSA. Producers who are unsure of whether a form is on file may contact their local FSA service center. Contact information for service centers is available at
In addition to the forms listed above, certain producers will also need to submit the following forms to qualify for an increased payment rate or payment limitation, as described later in this document:
• Form CCC-860, Socially Disadvantaged, Limited Resource, Beginning and Veteran Farmer or Rancher Certification, applicable for the program year or years for which the producer is applying for ERP;
• Form FSA-510, Request for an Exception to the $125,000 Payment Limitation for Certain Programs, accompanied by a certification from a certified public accountant or attorney as to that person or legal entity's certification, for a legal entity and all members of that entity, for each applicable program year.
FSA will continue to accept forms CCC-860 and FSA-510 from producers for the purpose of establishing eligibility for an increased payment rate or payment limitation until the deadline announced by FSA.
RMA and FSA will calculate ERP Phase 1 payments based on the data on file with the agencies at the time of calculation. The ERP Phase 1 payment calculation for a crop and unit will depend on the type and level of coverage obtained by the producer. Each calculation will use an ERP factor based on the producer's level of crop insurance or NAP coverage, as specified in the following tables.
When determining the ERP factors, analysis was conducted to ensure that payments do not exceed available funding and, in aggregate across all producers, do not exceed 90 percent of losses, as required by the Extending Government Funding and Delivering Emergency Assistance Act. The difference between the ERP payment factor for crop insurance and NAP is due to differences in the available coverage levels. Crop insurance is available at the catastrophic coverage level (50 percent production coverage of 55 percent of the price) and buy-up coverage levels (50 percent to 85 percent of the production for 100 percent of the price). NAP is limited by law to a maximum of 65 percent buy-up coverage. For both NAP and crop insurance, the ERP payment factor for the catastrophic and maximum buy-up levels are 75 percent and 95 percent respectively, with the ERP factors stair-stepping for the buy-up options in-between as shown in the tables above. The Extending Government Funding and Delivering Emergency Assistance Act provides that payments to producers who did not have crop insurance or NAP coverage cannot exceed 70 percent of their loss; therefore, the lowest ERP factor for producers who had crop insurance or NAP is set at 75 percent. Payment limits and other reductions will reduce ERP payments, further lowering the percent of losses covered.
For crop insurance, RMA will use the producer's data that is already on file, which provides the necessary information to determine the producer's amount of loss. Crop insurance provides financial assistance for crop losses due to specified natural disasters and uses a producer's data to calculate a payment based on the type of crop insurance coverage elected by the producer. As previously discussed, ERP is intended to compensate producers for a percentage of their loss determined by the applicable ERP factor based on the level of crop insurance coverage purchased; therefore, RMA will calculate each producer's loss consistent with the loss procedures for the type of coverage purchased
For NAP-covered crops, FSA will use the producer's crop production or inventory data that is already on file, which provides the necessary information to determine the producer's amount of loss. NAP provides financial assistance for crop losses due to specified natural disasters and uses a producer's crop production or inventory data to calculate a payment based on the level of NAP coverage elected by the producer. As previously discussed, ERP is intended to compensate producers for a percentage of loss determined by the applicable ERP factor based on their NAP coverage level; therefore, FSA will perform a calculation that is consistent with the NAP payment calculation for the crop and unit, as provided in 7 CFR part 1437, but using the ERP factor in the table above applicable to the producer's NAP coverage level as the applicable guarantee in those calculations. For example, the guarantee for a producer that had purchased 60 percent NAP coverage would be
Similar to other FSA disaster assistance programs like ELAP and other recent ad hoc disaster programs, historically underserved farmers and ranchers will receive an increase to their ERP Phase 1 payment that is equal to 15 percent of the amount calculated as described above. For example, if a historically underserved farmer or rancher's calculated amount is $1,000, their ERP Phase 1 payment will be $1,150. To qualify for the increased payment amount, a historically underserved farmer or rancher must have certified their status on form CCC-860, Socially Disadvantaged, Limited Resource, Beginning and Veteran Farmer or Rancher Certification. FSA will issue ERP Phase 1 payments as applications are processed and approved. If a producer files form CCC-860 after their ERP Phase 1 payment is issued but before the deadline to be announced by FSA, FSA will process the form CCC-860 and issue the additional payment amount.
A total of $10 billion was allocated to certain disaster relief programs. Congress allocated $750 million for livestock assistance, with the first phase of the Emergency Livestock Relief Program (ELRP) already paying over $560 million. ERP Phase 1 payments for crops covered by crop insurance will be prorated by 75 percent to ensure that total ERP payments, including payments under ERP Phase 2, do not exceed the available funding. ERP Phase 1 payments for NAP-covered crops will not be prorated due to the significantly smaller NAP portfolio that by its nature only covers smaller acreages and specialty crops that are not covered by crop insurance.
The payment limitation for ERP Phase 1 is determined by the person's or legal entity's average adjusted gross farm income (income from activities related to farming, ranching, or forestry). Specifically, a person or legal entity, other than a joint venture or general partnership, cannot receive, directly or indirectly, more than $125,000 in payments for specialty crops and $125,000 in payment for all other crops under ERP (for Phase 1 and Phase 2 combined) for a program year if their average adjusted gross farm income is less than 75 percent of their average AGI the three taxable years preceding the most immediately preceding complete tax year. If at least 75 percent of the person or legal entity's average AGI is derived from farming, ranching, or forestry related activities and the participant provides the required certification and documentation, as discussed below, the person or legal entity, other than a joint venture or general partnership, is eligible to receive, directly or indirectly, up to:
• $900,000 for each program year for specialty crops;
• $250,000 for each program year for all other crops.
The relevant tax years for establishing a producer's AGI and percentage derived from farming, ranching, or forestry related activities are:
• 2016, 2017, and 2018 for program year 2020;
• 2017, 2018, and 2019 for program year 2021; and
• 2018, 2019, and 2020 for program year 2022.
To receive more than $125,000 in ERP payments for a program year, producers must submit form FSA-510, accompanied by a certification from a certified public accountant or attorney as to that person or legal entity's certification. If a producer requesting the increased payment limitation is a legal entity, all members of that entity must also complete form FSA-510 and provide the required certification according to the direct attribution provisions in 7 CFR 1400.105, “Attribution of Payments.” If a legal entity would be eligible for the increased payment limitation based on the legal entity's average AGI from farming, ranching, or forestry related activities but a member of that legal entity either does not complete a form FSA-510 and provide the required certification or is not eligible for the increased payment limitation, the payment to the legal entity will be reduced for the limitation applicable to the share of the ERP Phase 1 payment attributed to that member. FSA will issue ERP Phase 1 payments as applications are processed and approved. If a producer files form FSA-510 and the accompanying certification after their ERP Phase 1 payment is issued but before the deadline announced by FSA, FSA will process the form FSA-510 and issue the additional payment amount.
A payment made to a legal entity will be attributed to those members who have a direct or indirect ownership interest in the legal entity, unless the payment of the legal entity has been reduced by the proportionate ownership interest of the member due to that member's ineligibility.
Attribution of payments made to legal entities will be tracked through four levels of ownership in legal entities as follows:
• First level of ownership—any payment made to a legal entity that is owned in whole or in part by a person will be attributed to the person in an amount that represents the direct ownership interest in the first level or payment legal entity;
• Second level of ownership—any payment made to a first-level legal entity that is owned in whole or in part by another legal entity (referred to as a second-level legal entity) will be attributed to the second-level legal entity in proportion to the ownership of
• Third and fourth levels of ownership—except as provided in the second level of ownership bullet above and in the fourth level of ownership bullet below, any payments made to a legal entity at the third and fourth levels of ownership will be attributed in the same manner as specified in the second level of ownership bullet above; and
• Fourth-level of ownership—if the fourth level of ownership is that of a legal entity and not that of a person, a reduction in payment will be applied to the first-level or payment legal entity in the amount that represents the indirect ownership in the first level or payment legal entity by the fourth-level legal entity.
Payments made directly or indirectly to a person who is a minor child will not be combined with the earnings of the minor's parent or legal guardian.
A producer that is a legal entity must provide the names, addresses, ownership share, and valid taxpayer identification numbers of the members holding an ownership interest in the legal entity. Payments to a legal entity will be reduced in proportion to a member's ownership share when a valid taxpayer identification number for a person or legal entity that holds a direct or indirect ownership interest, at the first through fourth levels of ownership in the business structure, is not provided to FSA.
If an individual or legal entity is not eligible to receive ERP Phase 1 payments due to the individual or legal entity failing to satisfy payment eligibility provisions, the payment made either directly or indirectly to the individual or legal entity will be reduced to zero. The amount of the reduction for the direct payment to the producer will be commensurate with the direct or indirect ownership interest of the ineligible individual or ineligible legal entity. Like other programs administered by FSA, payments made to an Indian Tribe or Tribal organization, as defined in section 4(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304), will not be subject to payment limitation.
All producers who receive ERP Phase 1 payments, including those receiving a payment based on tree, bush, or vine crop insurance policies, are statutorily required to purchase crop insurance, or NAP coverage where crop insurance is not available, for the next 2 available crop years, as determined by the Secretary. Participants must obtain crop insurance or NAP, as may be applicable:
• At a coverage level equal to or greater than 60 percent for insurable crops; or
• At the catastrophic level or higher for NAP crops.
Availability will be determined from the date a producer receives an ERP payment, and may vary depending on the timing and availability of crop insurance or NAP for a producer's particular crops. The final crop year to purchase crop insurance or NAP coverage to meet the second year of coverage for this requirement is the 2026 crop year.
In situations where crop insurance is unavailable for a crop, an ERP participant must obtain NAP coverage. Section 1001D of the Food Security Act of 1985 (1985 Farm Bill) provides that a person or entity with an AGI in amount greater than $900,000 is not eligible to participate in NAP; however, producers with an AGI greater than $900,000 are eligible for ERP. To reconcile this restriction in the 1985 Farm Bill and the requirement to obtain NAP or crop insurance coverage, ERP participants may meet the purchase requirement by purchasing Whole-Farm Revenue Protection (WFRP) crop insurance coverage, if eligible, or they may pay the applicable NAP service fee despite their ineligibility for a NAP payment. In other words, the service fee must be paid even though no NAP payment may be made because the AGI of the person or entity exceeds the 1985 Farm Bill limitation. The crop insurance and NAP coverage requirements are specific to the crop and county (which is the county where the crop is physically located for insured crops and the administrative county for NAP-covered crops) for which ERP Phase 1 payments are paid. This means that a producer is required to purchase crop insurance or NAP coverage for the crop in the county for which the producer was issued an ERP Phase 1 payment. Producers who receive an ERP Phase 1 payment that was calculated based on an indemnity under a Pasture, Rangeland, and Forage (PRF); Annual Forage; or WFRP policy must purchase the same type of policy or a combination of individual policies for the crops that had covered losses under ERP to meet the linkage requirement. Producers who receive a payment on a crop in a county and who have the crop or crop acreage in subsequent years, as provided in this document, and who fail to obtain the 2 years of crop insurance or NAP coverage required as specified in this document must refund all ERP Phase 1 payments for that crop in that county with interest from the date of disbursement. Producers who were paid under ERP Phase 1 for a crop in a county, but do not plant that crop in that county in a year for which this requirement applies, are not subject to the crop insurance or NAP purchase requirement for that year.
In the event that any ERP Phase 1 payment resulted from erroneous information reported by the producer or if the producer's data are updated after RMA or FSA calculate a producer's ERP Phase 1 payment, the ERP Phase 1 payment will be recalculated and the producer must refund any excess payment to FSA, including interest to be calculated from the date of the disbursement to the producer. If FSA determines that the producer intentionally misrepresented information used to determine the producer's ERP Phase 1 payment amount, the application will be disapproved and the producer must refund the full payment to FSA with interest from the date of disbursement. All persons with a financial interest in a legal entity receiving payments are jointly and severally liable for any refund, including related charges, which is determined to be due to FSA for any reason. Any required refunds must be resolved in accordance with debt settlement regulations in 7 CFR part 3.
Applicable general eligibility requirements, including recordkeeping requirements and required compliance with HELC and Wetland Conservation provisions, are similar to those for the previous ad hoc crop disaster programs and current permanent disaster programs.
General requirements that apply to other FSA-administered commodity programs also apply to ERP, including compliance with the provisions of 7 CFR part 12, “Highly Erodible Land and Wetland Conservation,” and the provisions of 7 CFR 718.6, which address ineligibility for benefits for offenses involving controlled substances. Appeal regulations in 7 CFR parts 11 and 780 and equitable relief and finality provisions in 7 CFR part 718, subpart D, apply to determinations under ERP. As described above, ERP Phase 1 payments are calculated using data on file with RMA and FSA at the
Participants are required to retain documentation in support of their application for 3 years after the date of approval. All information provided to FSA for program eligibility and payment calculation purposes, including certification that a producer suffered a loss due to a qualifying disaster event, is subject to spot check. Participants receiving ERP Phase 1 payments or any other person who furnishes such information to USDA must permit authorized representatives of USDA or the Government Accountability Office, during regular business hours, to enter the agricultural operation and to inspect, examine, and to allow representatives to make copies of books, records, or other items for the purpose of confirming the accuracy of the information provided by the participant.
Applicants have a right to a decision in response to their application. If an applicant files a late ERP Phase 1 application, the application is subject to the following conditions:
• A late ERP application will be considered a request to waive the deadline.
• Requests to waive or modify program provisions are at the discretion of the Deputy Administrator. The Deputy Administrator has the authority to waive or modify application deadlines and other requirements or program provisions not specified in law in cases where the Deputy Administrator determines it is (1) equitable to do so and (2) where the lateness or failure to meet such other requirements or program provisions do not adversely affect the operation of ERP.
• Applicants who request to waive or modify ERP provisions do not have a right to a decision on those requests.
• The Deputy Administrator's refusal to exercise discretion on requests to waive or modify ERP provisions will not be considered an adverse decision and is, by itself, not appealable.
Any payment under ERP will be made without regard to questions of title under State law and without regard to any claim or lien. The regulations governing offsets in 7 CFR part 3 apply to ERP payments.
If any person who would otherwise be eligible to receive a payment dies before the payment is received, payment may be released as specified in 7 CFR 707.3. Similarly, if any person or legal entity who would otherwise have been eligible to apply for a payment dies or is dissolved, respectively, before the payment is applied for, payment may be released in accordance with this document if a timely application is filed by an authorized representative. Proof of authority to sign for the deceased producer or dissolved entity must be provided. If a participant is now a dissolved general partnership or joint venture, all members of the general partnership or joint venture at the time of dissolution or their duly authorized representatives must sign the application for payment. Eligibility of such participant will be determined, as it is for other participants, based upon ownership share and risk in producing the crop.
In either applying for or participating in ERP, or both, the producer is subject to laws against perjury (including, but not limited to, 18 U.S.C. 1621). If the producer willfully makes and represents as true any verbal or written declaration, certification, statement, or verification that the producer knows or believes not to be true, in the course of either applying for or participating in ERP, or both, then the producer may be found to be guilty of perjury. Except as otherwise provided by law, if guilty of perjury the applicant may be fined, imprisoned for not more than 5 years, or both, regardless of whether the producer makes such verbal or written declaration, certification, statement, or verification within or outside the United States.
For the purposes of the effect of a lien on eligibility for Federal programs (28 U.S.C. 3201(e)), USDA waives the restriction on receipt of funds under ERP but only as to beneficiaries who, as a condition of the waiver, agree to apply the ERP payments to reduce the amount of the judgment lien.
In addition to any other Federal laws that apply to ERP, the following laws apply: 15 U.S.C. 714; and 18 U.S.C. 286, 287, 371, and 1001.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), FSA is requesting comments from interested individuals and organizations on the information collection request associated with ERP. After the 60-day period ends, the information collection request will be submitted to the Office of Management and Budget (OMB) for a 3-year approval to cover ERP information collection. To start the ERP information collection approval, prior to publishing this notice, FSA received emergency approval from OMB for 6 months. The emergency approval covers ERP information collection activities.
For the following estimated total annual burden on respondents, the formula used to calculate the total burden hour is the estimated average time per response multiplied by the estimated total annual responses. The estimated average time per response is rounded to 3 decimal places instead of showing all 7 decimal places, so the calculation based on the numbers shown below is not exact.
We are requesting comments on all aspects of this information collection to help us to:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the FSA, including whether the information will have practical utility;
(2) Evaluate the accuracy of the FSA's estimate of burden including the
(3) Enhance the quality, utility, and clarity of the information to be collected; or
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for Office of Management and Budget approval.
The environmental impacts of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulation for compliance with NEPA (7 CFR part 799). ERP is authorized by the Extending Government Funding and Delivering Emergency Assistance Act. The intent of ERP Phase 1 is to provide payments to producers who suffered eligible crop, tree, bush, and vine losses due to wildfires, hurricanes, floods, derechos, excessive heat, winter storms, freeze (including a polar vortex), smoke exposure, excessive moisture, and qualifying drought, and related conditions occurring in calendar years 2020 and 2021.
The limited discretionary aspects of the program (for example, determining payment limitations) were designed to be consistent with established FSA disaster programs. As such, the Categorical Exclusions found at 7 CFR part 799.31 apply, specifically 7 CFR 799.31(b)(6)(iv) and (vi) (that is, § 799.31(b)(6)(iv) Individual farm participation in FSA programs where no ground disturbance or change in land use occurs as a result of the proposed action or participation; and § 799.31(b)(6)(vi) Safety net programs administered by FSA). No Extraordinary Circumstances (7 CFR 799.33) exist. As such, FSA has determined that the implementation of ERP and the participation in ERP do not constitute major Federal actions that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, FSA will not prepare an environmental assessment or environmental impact statement for this regulatory action.
The title and number of the Federal assistance programs, as found in the Assistance Listing,
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (for example, Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA TARGET Center at (202) 720-2600 or (844) 433-2774 (toll-free nationwide). Additionally, program information may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
USDA is an equal opportunity provider, employer, and lender.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Kansas Advisory Committee (Committee) will hold a series of meeting(s) via web conference on, May 26, 2022; June 9, 2022 and June 23, 2022 at 12:00 p.m. Central Time. The purpose of the meetings is for the committee to discuss potential topics and panelists for the upcoming briefing(s).
The meeting will be held on:
David Barreras, Designated Federal Officer, at
Members of the public may listen to this discussion through the above call-in number. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
On January 13, 2022, BMW Manufacturing Company, LLC submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 38A, in Spartanburg, South Carolina.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Puerto Rico Industrial Development Company, grantee of FTZ 7, requesting subzone status for the facility of Dantzler Trade, Inc., located in Toa Baja, Puerto Rico. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on May 12, 2022.
The proposed subzone (22.15 acres) is located at Road 865, Km. 5.5, Candelaría Arenas Ward, Toa Baja, Puerto Rico. No authorization for production activity has been requested at this time. The proposed subzone would be subject to the existing activation limit of FTZ 7.
In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Online FTZ Information Section” section of the FTZ Board's website, which is accessible via
For further information, contact Camille Evans at
Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (2021) (“EAR” or “the Regulations”), I hereby grant the request of the Office of Export Enforcement (“OEE”) to renew the temporary denial order issued in this matter on November 17, 2021. I find that
On March 17, 2008, Darryl W. Jackson, the then-Assistant Secretary of Commerce for Export Enforcement (“Assistant Secretary”), signed an order denying Mahan Airways' export privileges for a period of 180 days on the ground that issuance of the order was necessary in the public interest to prevent an imminent violation of the Regulations. The order also named as denied persons Blue Airways, of Yerevan, Armenia (“Blue Airways of Armenia”), as well as the “Balli Group Respondents,” namely, Balli Group PLC, Balli Aviation, Balli Holdings, Vahid Alaghband, Hassan Alaghband, Blue Sky One Ltd., Blue Sky Two Ltd., Blue Sky Three Ltd., Blue Sky Four Ltd., Blue Sky Five Ltd., and Blue Sky Six Ltd., all of the United Kingdom. The order was issued
This temporary denial order (“TDO”) was renewed in accordance with Section 766.24(d) of the Regulations.
The September 11, 2009 renewal order continued the denial order as to Mahan Airways, but not as to the Balli Group Respondents or Blue Airways of Armenia.
As part of the August 24, 2011 renewal, Kerman Aviation, Sirjanco Trading LLC, and Ali Eslamian were added as related persons. Mahan Air General Trading LLC, Equipco (UK) Ltd., and Skyco (UK) Ltd. were added as related persons by a modification order issued on April 9, 2012. Mehdi Bahrami was added as a related person as part of the February 4, 2013 renewal order.
On May 21, 2015, a modification order issued adding Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading as respondents. As detailed in that order and discussed further
Sky Blue Bird Group and its chief executive officer, Issam Shammout, were added as related persons as part of the July 13, 2015 renewal order.
The December 11, 2018 renewal order continued the denial of the export privileges of Mahan Airways, Pejman Mahmood Kosarayanifard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Mahan Air General Trading LLC, Mehdi Bahrami, Al Naser Airlines, Ali Abdullah Alhay, Bahar Safwa General Trading, Sky Blue Bird Group, and Issam Shammout.
On April 25, 2022, BIS, through OEE, submitted a written request for renewal of the TDO that issued on November 17, 2021. The written request was made more than 20 days before the TDO's scheduled expiration. Notice of the renewal request was provided to Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading in accordance with Sections 766.5 and 766.24(d) of the Regulations. No opposition to the renewal of the TDO has been received. Furthermore, no appeal of the related person determinations made as part of the September 3, 2010, February 25, 2011, August 24, 2011, April 9, 2012, February 4, 2013, and July 13, 2015 renewal or modification orders has been made by Kosarian Fard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Mahan Air General Trading LLC, Mehdi Bahrami, Sky Blue Bird Group, or Issam Shammout.
Pursuant to Section 766.24, BIS may issue or renew an order temporarily denying a respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations. 15 CFR 766.24(b)(1) and 766.24(d). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO, and the renewal and modification orders subsequently issued in this matter, including the May 21, 2015 modification order and the renewal order issued on May 21, 2021, and the evidence developed over the course of this investigation, which indicate a blatant disregard of U.S. export controls and the TDO. The initial TDO was issued as a result of evidence that showed that Mahan Airways and other parties engaged in conduct prohibited by the EAR by knowingly re-exporting to Iran three U.S.-origin aircraft, specifically Boeing 747s (“Aircraft 1-3”), items subject to the EAR and classified under Export Control Classification Number (“ECCN”) 9A991.b, without the required U.S. Government authorization. Further evidence submitted by BIS indicated that Mahan Airways was involved in the attempted re-export of three additional U.S.-origin Boeing 747s (“Aircraft 4-6”) to Iran.
As discussed in the September 17, 2008 renewal order, evidence presented by BIS indicated that Aircraft 1-3 continued to be flown on Mahan Airways' routes after issuance of the TDO, in violation of the Regulations and the TDO itself.
The March 9, 2010 renewal order also noted that a court in the United Kingdom (“U.K.”) had found Mahan Airways in contempt of court on February 1, 2010, for failing to comply with that court's December 21, 2009 and January 12, 2010 orders compelling Mahan Airways to remove the Boeing 747s from Iran and ground them in the Netherlands. Mahan Airways and the Balli Group Respondents had been litigating before the U.K. court concerning ownership and control of Aircraft 1-3. In a letter to the U.K. court dated January 12, 2010, Mahan Airways' Chairman indicated,
The September 3, 2010 renewal order discussed the fact that Mahan Airways' violations of the TDO extended beyond operating U.S.-origin aircraft and attempting to acquire additional U.S.-origin aircraft. In February 2009, while subject to the TDO, Mahan Airways participated in the export of computer motherboards, items subject to the Regulations and designated as EAR99, from the United States to Iran, via the United Arab Emirates (“UAE”), in violation of both the TDO and the Regulations, by transporting and/or forwarding the computer motherboards from the UAE to Iran. Mahan Airways' violations were facilitated by Gatewick LLC, which not only participated in the transaction, but also has stated to BIS that it acted as Mahan Airways' sole booking agent for cargo and freight forwarding services in the UAE.
Moreover, in a January 24, 2011 filing in the U.K. court, Mahan Airways asserted that Aircraft 1-3 were not being used, but stated in pertinent part that the aircraft were being maintained in Iran “in an airworthy condition” and that, depending on the outcome of its U.K. court appeal, the aircraft “could immediately go back into service . . . on international routes into and out of Iran.” Mahan Airways' January 24, 2011 submission to U.K. Court of Appeal, at p. 25, ¶¶ 108, 110. This clearly stated intent, both on its own and in conjunction with Mahan Airways' prior misconduct and statements, demonstrated the need to renew the TDO in order to prevent imminent future violations. Two of these three
In addition, as first detailed in the July 1, 2011 and August 24, 2011 orders, and discussed in subsequent renewal orders in this matter, Mahan Airways also continued to evade U.S. export control laws by operating two Airbus A310 aircraft, bearing Mahan Airways' livery and logo, on flights into and out of Iran.
The February 4, 2013 renewal order laid out further evidence of continued and additional efforts by Mahan Airways and other persons acting in concert with Mahan, including Kral Aviation and another Turkish company, to procure U.S.-origin engines—two GE CF6-50C2 engines, with MSNs 517621 and 517738, respectively—and other aircraft parts in violation of the TDO and the Regulations.
On December 31, 2013, Kral Aviation was added to BIS's Entity List, Supplement No. 4 to Part 744 of the Regulations.
The July 31, 2013 renewal order detailed additional evidence obtained by OEE showing efforts by Mahan Airways to obtain another GE CF6-50C2 aircraft engine (MSN 528350) from the United States via Turkey. Multiple Mahan employees, including Mehdi Bahrami, were involved in or aware of matters related to the engine's arrival in Turkey from the United States, plans to visually inspect the engine, and prepare it for shipment from Turkey.
Mahan Airways sought to obtain this U.S.-origin engine through Pioneer Logistics Havacilik Turizm Yonetim Danismanlik (“Pioneer Logistics”), an aircraft parts supplier located in Turkey, and its director/operator, Gulnihal Yegane, a Turkish national who previously had conducted Mahan related business with Mehdi Bahrami and Ali Eslamian. Moreover, as referenced in the July 31, 2013 renewal order, a sworn affidavit by Kosol Surinanda, also known as Kosol Surinandha, Managing Director of Mahan's General Sales Agent in Thailand, stated that the shares of Pioneer Logistics for which he was the listed owner were “actually the property of and owned by Mahan.” He further stated that he held “legal title to the shares until otherwise required by Mahan” but would “exercise the rights granted to [him] exactly and only as instructed by Mahan and [his] vote and/or decisions [would] only and exclusively reflect the wills and demands of Mahan[.]”
The January 24, 2014 renewal order outlined OEE's continued investigation of Mahan Airways' activities and detailed an attempt by Mahan, which OEE thwarted, to obtain, via an Indonesian aircraft parts supplier, two U.S.-origin Honeywell ALF-502R-5 aircraft engines (MSNs LF5660 and LF5325), items subject to the Regulations, from a U.S. company located in Texas. An invoice of the Indonesian aircraft parts supplier dated March 27, 2013, listed Mahan Airways as the purchaser of the engines and included a Mahan ship-to address. OEE also obtained a Mahan air waybill dated March 12, 2013, listing numerous U.S.-origin aircraft parts subject to the Regulations—including, among other items, a vertical navigation gyroscope, a transmitter, and a power control unit—being transported by Mahan from Turkey to Iran in violation of the TDO.
The July 22, 2014 renewal order discussed open source evidence from the March-June 2014 time period regarding two BAE regional jets, items subject to the Regulations, that were painted in the livery and logo of Mahan Airways and operating under Iranian tail numbers EP-MOI and EP-MOK, respectively.
The January 16, 2015 renewal order detailed evidence of additional attempts by Mahan Airways to acquire items subject the Regulations in further violation of the TDO. Specifically, in March 2014, OEE became aware of an inertial reference unit bearing serial number 1231 (“the IRU”) that had been sent to the United States for repair. The IRU is a U.S.-origin item, subject to the Regulations, classified under ECCN 7A103, and controlled for missile technology reasons. Upon closer inspection, it was determined that IRU came from or had been installed on an Airbus A340 aircraft bearing MSN 056. Further investigation revealed that as of approximately February 2014, this aircraft was registered under Iranian tail number EP-MMB and had been painted in the livery and logo of Mahan Airways.
The January 16, 2015 renewal order also described related efforts by the Departments of Justice and Treasury to further thwart Mahan's illicit procurement efforts. Specifically, on August 14, 2014, the United States Attorney's Office for the District of Maryland filed a civil forfeiture complaint for the IRU pursuant to 22 U.S.C. 401(b) that resulted in the court issuing an Order of Forfeiture on December 2, 2014. EP-MMB remains listed as active in Mahan Airways' fleet and has been used on flights into and out of Iran as recently as December 19, 2017.
Additionally, on August 29, 2014, OFAC blocked the property and interests in property of Asian Aviation Logistics of Thailand, a Mahan Airways affiliate or front company, pursuant to Executive Order 13224. In doing so, OFAC described Mahan Airways' use of Asian Aviation Logistics to evade sanctions by making payments on behalf of Mahan for the purchase of engines and other equipment.
The May 21, 2015 modification order detailed the acquisition of two aircraft, specifically an Airbus A340 bearing MSN 164 and an Airbus A321 bearing MSN 550, that were purchased by Al Naser Airlines in late 2014/early 2015 and were under the possession, control, and/or ownership of Mahan Airways.
The May 21, 2015 modification order also laid out evidence showing the respondents' attempts to obtain other controlled aircraft, including aircraft physically located in the United States in similarly-patterned transactions during the same recent time period. Transactional documents involving two Airbus A320s bearing MSNs 82 and 99, respectively, again showed Ali Abdullah Alhay signing sales agreements for Al Naser Airlines.
The July 13, 2015 renewal order outlined evidence showing that Al Naser Airlines' attempts to acquire aircraft on behalf of Mahan Airways extended beyond MSNs 164 and 550 to include a total of nine aircraft.
The January 7, 2016 renewal order discussed evidence that Mahan Airways had begun actively flying EP-MMD on international routes into and out of Iran. Additionally, the January 7, 2016 order described publicly available aviation database and flight tracking information indicating that Mahan Airways continued efforts to acquire Iranian tail numbers and press into active service under Mahan's livery and logo at least two more of the Airbus A340 aircraft it had obtained from or through Al Naser Airlines: EP-MME (MSN 371) and EP-MMF (MSN 376), respectively.
The July 7, 2016 renewal order described Mahan Airways' acquisition of a BAE Avro RJ-85 aircraft (MSN 2392) in violation of the Regulations and its subsequent registration under Iranian tail number EP-MOR.
The December 30, 2016 renewal order outlined Mahan's continued operation of multiple Airbus aircraft, including EP-MMD (MSN 164), EP-MMF (MSN 376), and EP-MMH (MSN 391), which were acquired from or through Al Naser Airlines, as previously detailed in pertinent part in the July 13, 2015 and January 7, 2016 renewal orders. Publicly available flight tracking information showed that the aircraft were operated on flights into and out of Iran, including from/to Beijing, China, Kuala Lumpur, Malaysia, and Istanbul, Turkey.
The June 27, 2017 renewal order included similar evidence regarding Mahan Airways' operation of multiple Airbus aircraft subject to the Regulations, including, but not limited to, aircraft procured from or through Al Naser Airlines, on flights into and out of Iran, including from/to Moscow, Russia, Shanghai, China and Kabul, Afghanistan. The June 27, 2017 order also detailed evidence concerning a suspected planned or attempted diversion to Mahan of an Airbus A340 subject to the Regulations that had first been mentioned in OEE's December 13, 2016 renewal request.
The December 20, 2017 renewal order presented evidence that a Mahan employee attempted to initiate negotiations with a U.S. company for the purchase of an aircraft subject to the Regulations and classified under ECCN 9A610. Moreover, the order highlighted Al Naser Airlines' acquisition, via lease, of at least possession and/or control of a Boeing 737 (MSN 25361), bearing tail number YR-SEB, and an Airbus A320 (MSN 357), bearing tail number YR-SEA, from a Romanian company in violation of the TDO and the Regulations.
The December 20, 2017 renewal order also included evidence indicating that Mahan Airways was continuing to operate a number of aircraft subject to the Regulations, including aircraft originally procured from or through Al Naser Airlines, on flights into and out of Iran, including from/to Lahore, Pakistan, Shanghai, China, Ankara, Turkey, Kabul, Afghanistan, and Baghdad, Iraq.
The June 14, 2018 renewal order outlined evidence that Mahan began actively operating EP-MMT, an Airbus A340 aircraft (MSN 292) acquired in 2017 and previously registered in Kazakhstan under tail number UP-A4003, on international flights into and out of Iran.
The June 14, 2018 renewal order also noted OFAC's May 24, 2018 designation of Otik Aviation, a/k/a Otik Havacilik Sanayi Ve Ticaret Limited Sirketi, of Turkey, as an SDGT pursuant to Executive Order 13224, for providing material support to Mahan, as well as OFAC's designation as SDGTs of an additional twelve aircraft in which Mahan has an interest.
The December 11, 2018 renewal order detailed publicly available information showing that Mahan Airways had continued operating a number of aircraft subject to the EAR, including, but not limited to, EP-MMB, EP-MME, EP-MMF, and EP-MMQ, on international flights into and out of Iran from/to Istanbul, Turkey, Guangzhou, China, Bangkok, Thailand, and Dubai, UAE.
The December 11, 2018 order also noted OFAC's September 14, 2018 designation of Mahan-related entities as SDGTs pursuant to Executive Order 13224, namely, My Aviation Company Limited, of Thailand, and Mahan Travel and Tourism SDN BHD, a/k/a Mahan Travel a/k/a Mihan Travel & Tourism SDN BHD, of Malaysia.
The June 5, 2019 renewal order highlighted Mahan's continued violation of the TDO and the Regulations. An end-use check conducted by BIS in Malaysia in March 2019 uncovered evidence that, on approximately ten occasions, Mahan had caused, aided and/or abetted the unlicensed export of U.S.-origin items subject to the Regulations from the United States to Iran via Malaysia. The items included helicopter shafts, transmitters, and other aircraft parts, some of which are listed on the Commerce Control List and controlled on anti-terrorism grounds. The June 5, 2019 order also detailed publicly available flight tracking information showing that Mahan continued to unlawfully operate a number of aircraft subject to the EAR on flights into and out of Iran, including on routes to and from Damascus, Syria.
The June 5, 2019 order also described actions taken by both BIS and OFAC to thwart efforts by entities connected to or acting on behalf of Mahan Airways to violate U.S. export controls and sanctions related to Iran. On May 14, 2019, BIS added Manohar Nair, Basha Asmath Shaikh, and two co-located companies that they operate, Emirates Hermes General Trading and Presto Freight International, LLC, to the Entity List pursuant to Section 744.11 of the Regulations, including for engaging in activities to procure U.S.-origin items on Mahan's behalf.
The December 2, 2019 renewal order noted that OEE's on-going investigation revealed that U.S.-origin passenger flight and database management software subject to the Regulations was provided to a company in Turkey and subsequently used to facilitate and service Mahan's operations into and out of Turkey in further violation of the Regulations.
Additionally, open source information, including flight tracking data and news articles published in October 2019, showed that Mahan Airways was now operating a U.S.-origin Boeing 747 on routes between Iranian airports in Tehran, Kish Island, and Mashhad. This aircraft, bearing Iranian tail number EP-MNB, appears to be one of the three aircraft that Mahan illegally acquired via Blue Airways of Armenia and U.K.-based Balli Group that resulted in the issuance of the original TDO.
Evidence was also described in the December 2, 2019 renewal order showing that on or about November 11, 2019, Mahan caused, aided and/or abetted the unlicensed export of a U.S.-origin atomic absorption spectrometer, an item subject to the Regulations, from the United States to Iran via the UAE. Finally, publicly available flight tracking information showed that Mahan continued to unlawfully operate a number of aircraft subject to the EAR on flights into and out of Iran, including on routes to and from Guangzhou, China, Istanbul, Turkey, and Kuala Lumpur, Malaysia.
The May 29, 2020 renewal order cited Mahan's operation of EP-MMD, EP-MMF, and EP-MMI, aircraft originally acquired from Al Naser Airlines, on international flights into and out of Iran from/to Bangkok, Thailand, Dubai, UAE, and Shanghai, China in violation of the TDO and EAR.
In addition to detailing the operation of multiple aircraft in violation of the Regulations,
The November 24, 2020 renewal order also includes actions taken by other U.S. government agencies such as OFAC's August 19, 2020 designation of UAE-based Parthia Cargo, its CEO Amin Mahdavi, and Delta Parts Supply FZC as SDGTs pursuant to Executive Order 13224 for providing “key parts and logistics services for Mahan Air. . . .”
Moreover, in October 2020, the U.S. District Court for the District of New Jersey sentenced Joyce Eliasbachus to 18 months of confinement based on her role in a conspiracy to export $2 million dollars' worth of aircraft parts from the United States to Iran, including to Mahan Airways.
The May 21, 2021 renewal order outlined Mahan's continued operation of a number of aircraft subject to the EAR, including, but not limited to, EP-MMH, EP-MMI, and EP-MMQ, on international flights into and out of Iran from/to Shanghai, China, and Dubai, United Arab Emirates, and Guangzhou, China, respectively.
Open source news reporting also indicated that after five years of maintenance, Mahan Air is now operating EP-MNE, a Boeing 747 on domestic flights within Iran.
The November 17, 2021 order details Mahan's continued operation of a number of aircraft subject to the EAR, including, but not limited to EP-MME, EP-MMJ, EP-MMQ, on flights into and out of Iran from/to Istanbul, Turkey, and Dubai, United Arab Emirates, and Shenzhen, China, respectively.
Mahan continues to operate in violation of the TDO and/or Regulations a number of aircraft subject to the EAR, including, but not limited to EP-MME, EP-MNO, and EP-MMB on flights into and out of Iran from/to Moscow, Russia, Damascus, Syria, and Guangzhou, China, respectively.
In furtherance of the U.S. Government's coordinated efforts to thwart Mahan's malign activities, OFAC recently concluded an administrative enforcement case with an Australian freight forwarder resulting in a $6,131,855 civil penalty, which resolved, in part, allegations of receiving 327 payments from Mahan that were processed through U.S. financial institutions or foreign branches of U.S. financial institutions in apparent violation of OFAC sanctions.
Under the applicable standard set forth in Section 766.24 of the Regulations and my review of the entire record, I find that the evidence presented by BIS convincingly demonstrates that the denied persons have acted in violation of the Regulations and the TDO; that such violations have been significant, deliberate and covert; and that given the foregoing and the nature of the matters under investigation, there is a likelihood of imminent violations. Therefore, renewal of the TDO is necessary in the public interest to prevent imminent violation of the Regulations and to give notice to companies and individuals in the United States and abroad that they should continue to avoid dealing with Mahan Airways and Al Naser Airlines and the other denied persons, in connection with export and reexport transactions involving items subject to the Regulations and in connection with any other activity subject to the Regulations.
FIRST, that MAHAN AIRWAYS, Mahan Tower, No. 21, Azadegan St., M.A. Jenah Exp. Way, Tehran, Iran; PEJMAN MAHMOOD KOSARAYANIFARD A/K/A KOSARIAN FARD, P.O. Box 52404, Dubai, United Arab Emirates; MAHMOUD AMINI, G#22 Dubai Airport Free Zone, P.O. Box 393754, Dubai, United Arab Emirates, and P.O. Box 52404, Dubai, United Arab Emirates, and Mohamed Abdulla Alqaz Building, Al Maktoum Street, Al Rigga, Dubai, United Arab Emirates; KERMAN AVIATION A/K/A GIE KERMAN AVIATION, 42 Avenue Montaigne 75008, Paris, France; SIRJANCO TRADING LLC, P.O. Box 8709, Dubai, United Arab Emirates; MAHAN AIR GENERAL TRADING LLC, 19th Floor Al Moosa Tower One, Sheik Zayed Road, Dubai 40594, United Arab Emirates; MEHDI BAHRAMI, Mahan Airways- Istanbul Office, Cumhuriye Cad. Sibil Apt No: 101 D:6, 34374 Emadad, Sisli Istanbul, Turkey; AL NASER AIRLINES A/K/A AL-NASER AIRLINES A/K/A AL NASER WINGS AIRLINE A/K/A ALNASER AIRLINES AND AIR FREIGHT LTD., Home 46, Al-Karrada, Babil Region, District 929, St 21, Beside Al Jadirya Private Hospital, Baghdad, Iraq, and Al Amirat Street, Section 309, St. 3/H.20, Al Mansour, Baghdad, Iraq, and P.O. Box 28360, Dubai, United Arab Emirates, and P.O. Box 911399, Amman 11191, Jordan; ALI ABDULLAH ALHAY A/K/A ALI ALHAY A/K/A ALI ABDULLAH AHMED ALHAY, Home 46, Al-Karrada, Babil Region, District 929, St 21, Beside Al Jadirya Private Hospital, Baghdad, Iraq, and Anak Street, Qatif, Saudi Arabia 61177; BAHAR SAFWA GENERAL TRADING, P.O. Box 113212, Citadel Tower, Floor-5, Office #504, Business Bay, Dubai, United Arab Emirates, and P.O. Box 8709, Citadel Tower, Business Bay, Dubai, United Arab Emirates; SKY BLUE BIRD GROUP A/K/A SKY BLUE BIRD AVIATION A/K/A SKY BLUE BIRD LTD A/K/A SKY BLUE BIRD FZC, P.O. Box 16111, Ras Al Khaimah Trade Zone, United Arab Emirates; and ISSAM SHAMMOUT A/K/A MUHAMMAD
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or engaging in any other activity subject to the EAR; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or from any other activity subject to the EAR.
SECOND, that no person may, directly or indirectly, do any of the following:
A. Export, reexport, or transfer (in-country) to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
THIRD, that, after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to a Denied Person by ownership, control, position of responsibility, affiliation or other connection in the conduct of trade or business may also be made subject to the provisions of this Order.
FOURTH, that this Order does not prohibit any export, reexport, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-origin technology.
In accordance with the provisions of Sections 766.24(e) of the EAR, Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and/or Bahar Safwa General Trading may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022. In accordance with the provisions of Sections 766.23(c)(2) and 766.24(e)(3) of the EAR, Pejman Mahmood Kosarayanifard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Mahan Air General Trading LLC, Mehdi Bahrami, Sky Blue Bird Group, and/or Issam Shammout may, at any time, appeal their inclusion as a related person by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and/or Bahar Safwa General Trading as provided in Section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be provided to Mahan Airways, Al Naser Airlines, Ali Abdullah Alhay, and Bahar Safwa General Trading and each related person, and shall be published in the
This Order is effective immediately and shall remain in effect for 180 days.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of webconference.
The North Pacific Fishery Management Council's (Council) Enforcement Committee will hold a webconference.
The Enforcement Committee will begin on Thursday, June 2, 2022, From 1 p.m. to 3 p.m., Alaska Time.
The meeting will be by webconference. Join online through the link at
Instructions for attending the meeting via webconference are given under Connection Information, below.
Jon McCracken, Council staff; email:
The Enforcement Committee agenda will include: (a) Review the OLE Alaska Division 5-year priorities; (b) Observer Annual Report for 2021 (Enforcement Chapter); (c) the Trawl EM Analysis; and (d) other business. The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smart phone; or by phone only. Connection information will be posted online at:
Public comment letters will be accepted and should be submitted electronically to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of hybrid meeting.
The North Pacific Fishery Management Council (Council) Fishery Monitoring Advisory Committee (FMAC) will meet June 1, 2022.
The meeting will be held on Wednesday, June 1, 2022, from 8 a.m. to 4 p.m., Alaska Time.
The meeting will be a hybrid meeting. Attend in-person at the North Pacific Fisheries office, 1007 West Third Ave., Suite 400, Anchorage, AK 99501 or join online through the link at
Sara Cleaver, Council staff; telephone: (907) 271-2809; email:
The May 2021 FMAC agenda will include: (a) Updates since the last FMAC meeting; (b) an abbreviated 2021 Observer Annual report; (c) discussion on Trawl EM Initial Review analysis, and (d) other business.
The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smartphone; or by phone only. Connection information will be posted online at:
Public comment letters will be accepted and should be submitted electronically to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Orsted Wind Power North America, LLC (Orsted), and its designees, Garden State Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC (Skipjack), to incidentally harass marine mammals during marine site characterization surveys off the coast of Delaware and along potential export cable routes to landfall locations in Delaware and New Jersey.
This Authorization is effective from May 10, 2022 through May 9, 2023.
Kim Corcoran, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
On October 1, 2021, NMFS received a request from Orsted on behalf of Garden State and Skipjack, both subsidiaries of Orsted, for an IHA to take marine mammals incidental to marine site characterization surveys off the coast of Delaware. Following NMFS' review of the draft application, a revised version was submitted on November 24, 2021. The application was deemed adequate and complete on February 11, 2022. Orsted's request is for take of a small number of 16 species of marine mammals, by Level B harassment only. Neither Orsted nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued IHAs to Garden State (86 FR 33664; June 25, 2021) and Skipjack (86 FR 18943; April 12, 2021) for related work. Garden State's survey was effective until April 4, 2022 whereas work is still ongoing for Skipjack until their effectiveness end date of June 10, 2022. Orsted plans to survey the combined survey area of the aforementioned projects, including the same two Lease Areas currently being surveyed under those IHAs (see Figure 1).
As part of their overall marine site characterization survey operations, Orsted plans to conduct high-resolution geophysical (HRG) and geotechnical surveys in Lease Areas OCS-A 0482 and 0519 (Lease Areas), and the associated export cable route (ECR) areas off the coast of Delaware (Figure 1).
The purpose of the marine site characterization surveys is to collect data concerning seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of offshore wind facility development. Surveys are also conducted to support engineering design and to map Unexploded Ordnance (UXO). Underwater sound resulting from the site characterization survey activities, specifically HRG surveys, has the potential to result in incidental take of marine mammals in the form of Level B harassment. Table 1 identifies representative survey equipment with the expected potential to result in take of marine mammals.
The site characterization surveys are anticipated to occur between May 10, 2022 and May 9, 2023. The exact dates have not yet been established. The activity is expected to include up to 350 survey days over the course of a single year (“survey day” defined as a 24-hour (hr) activity period in which the assumed number of line kilometers (km) are surveyed). The number of anticipated survey days was calculated as the number of days needed to reach the overall level of effort required to meet survey objectives assuming any single vessel travels 4 knots (kn) (7.4 kilometers per hour (km/hr) and surveys cover, on average, 70 line km per 24-hr period. The applicant assumes the use of sparker systems, which produce the largest estimated harassment isopleths, on all survey days (see Table 1).
The activities will occur within the survey area which includes the Lease Areas and potential ECRs to landfall locations in Delaware, as shown in Figure 1. This survey area combines the survey areas associated with the previously issued Garden State (86 FR 33664; June 25, 2021) and Skipjack (86 FR 18943; April 12, 2021) IHAs. The combined Lease Areas (Garden State Lease Area OCS-A-0482 and Skipjack Lease Area OCS-A-0519) are comprised of approximately 568 square kilometers (km
Orsted plans to conduct HRG survey operations, including multibeam depth sounding, seafloor imaging, and shallow and medium penetration sub-bottom profiling. The HRG surveys will include the use of seafloor mapping equipment with operating frequencies above 180 kilohertz (kHz) (
Orsted assumes that vessels would generally conduct approximately 70 line km of survey effort per 24-hour operation period. On this basis a total of 350 vessel survey days are expected within Lease Areas OCS-A 0482, OCS-A 0519, and the associated ECR area. Water depths in the Lease Areas range from approximately 15 to 40 meters (m). Water depths within the ECR area
Acoustic sources planned for use during HRG survey activities by Orsted include the following. Survey equipment can either be towed, pole mounted, hull-mounted on the vessel (or on an ROV as noted above), or mounted on other survey equipment (
• Shallow penetration, non-impulsive, intermittent, mobile, non-parametric SBPs (
• Medium penetration SBPs (boomers) are used to map deeper subsurface stratigraphy as needed. A boomer is a broad-band sound source operating in the 3.5 Hz to 10 kHz frequency range. This system is commonly mounted on a sled and towed behind the vessel. Boomers are impulsive and mobile sources. The sound levels produced by this equipment type have the potential to result in Level B harassment of marine mammals; and
• Medium penetration SBPs (sparkers) are used to map deeper subsurface stratigraphy as need. Sparkers create acoustic pulses from 50 Hz to 4 kHz omnidirectionally from the source, and are considered to be impulsive and mobile sources. Sparkers are typically towed behind the vessel with adjacent hydrophone arrays to receive the return signals. The sound levels produced by this equipment type have the potential to result in Level B harassment of marine mammals.
Operation of other survey equipment types is not reasonably expected to result in take of marine mammals and will not be discussed further beyond the brief summaries provided in the notice of proposed IHA (87 FR 15922; March 21, 2022).
Table 1 identifies representative survey equipment with the expected potential to result in exposure of marine mammals and thus potentially result in take. The make and model of the listed geophysical equipment may vary depending on availability and the final equipment choices will vary depending upon the final survey design, vessel availability, and survey contractor selection.
Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting).
A notice of NMFS's proposal to issue an IHA to Orsted was published in the
During the 30-day public comment period, NMFS received comments from the Delaware Department of Resources and Environmental Control (DNREC), Oceana, and the Responsible Offshore Development Alliance (RODA). A few comments specifically addressed concerns regarding construction of a wind energy facility itself, which is outside the scope of NMFS' action considered herein. We do not specifically address those comments in further detail. All substantive comments, and NMFS' responses, are provided below, and the letters are available online at:
NMFS has further evaluated available information regarding the occurrence of hooded seals in the survey area. The limited data available support a conclusion that hooded seals occur rarely and irregularly in the survey area. DNREC did not provide any scientific data to support regular occurrence of hooded seals in the region and to quantify the potential for Level B harassment of hooded seals to occur and NMFS considers take of this species to be highly unlikely. Hooded seals are found at high latitudes in the North Atlantic and Arctic Oceans, breeding in ice packed areas. They spend a significant amount of time in deep waters, rarely hauling out along the coasts. Hooded seals are primarily found in Canada, although NMFS does acknowledge that a small number of individuals are increasingly being seen along the Atlantic coast. Due to their tendency to stay far offshore and as very few sightings have been documented along the Delaware coast, NMFS' evaluation has concluded that hooded seals are unlikely to be found within the survey area and are not discussed further in this document.
There are several additional reasons why we do not agree that use of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances, its utility in further reducing impact during HRG survey activities is limited. First, for this activity, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 141 m); this reflects the fact that, to start with, the source level is comparatively low and the intensity of any resulting impacts would be lower level and, further, it means that inasmuch as PAM will only detect a portion of any animals exposed within a zone, the overall probability of PAM detecting an animal in the harassment zone is low. Together these factors support the limited value of PAM for use in reducing take with smaller zones. PAM is only capable of detecting animals that are actively vocalizing, while many marine mammal species vocalize infrequently or during certain activities, which means that only a subset of the animals within the range of the PAM would be detected (and potentially have reduced impacts). Additionally, localization and range detection can be challenging under certain scenarios. For example, odontocetes are fast moving and often travel in large or dispersed groups which makes localization difficult.
Given that the effects to marine mammals from the types of surveys authorized in this IHA are expected to be limited to low level behavioral
Regarding monitoring for species that may be present yet go unobserved, NMFS recognizes that visual detection based mitigation approaches are not 100 percent effective. Animals are missed because they are underwater (availability bias) or because they are available to be seen, but are missed by observers (perception and detection biases) (
The notice of the proposed IHA published in the
While there would be additional documents submitted with a renewal request, for a qualifying renewal these would be limited to documentation that NMFS would make available and use to verify that the activities are identical to those in the initial IHA, are nearly identical such that the changes would have either no effect on impacts to marine mammals or decrease those impacts, or are a subset of activities already analyzed and authorized but not completed under the initial IHA. NMFS would also need to confirm, among other things, that the activities would occur in the same location; involve the same species and stocks; provide for continuation of the same mitigation, monitoring, and reporting requirements; and that no new information has been received that would alter the prior analysis. The renewal request would also contain a preliminary monitoring report, in order to verify that effects from the activities do not indicate impacts of a scale or nature not previously analyzed. The additional 15-day public comment period provides the public an opportunity to review these few documents, provide any additional pertinent information and comment on whether they think the criteria for a renewal have been met. Between the initial 30-day comment period on these same activities and the additional 15 days, the total comment period for a renewal is 45 days.
In addition to the IHA renewal process being consistent with all requirements under section 101(a)(5)(D), it is also consistent with Congress' intent for issuance of IHAs to the extent reflected in statements in the legislative history of the MMPA. Through the provision for renewals in the regulations, description of the process and express invitation to comment on specific potential renewals in the Request for Public Comments section of each proposed IHA, the description of the process on NMFS' website, further elaboration on the process through responses to comments such as these, posting of substantive documents on the agency's website, and provision of 30 or 45 days for public review and comment on all proposed initial IHAs and Renewals respectively, NMFS has ensured that the public is “invited and encouraged to participate fully in the agency's decision-making process”, as Congress intended.
NMFS further notes that the commenters seem to be conflating the phrase “best available data” with “the most recent data”. The MMPA specifies that the “best available data” must be used, which does not always mean the most recent. As is NMFS' prerogative, we referenced the best available NARW abundance estimate of 368 from the draft 2021 SARs as NMFS's determination of the best available data that we relied on in our analysis. The Pace (2021) results strengthened the case for a change in mean survival rates after 2010-2011, but did not significantly change other current estimates (population size, number of new animals, adult female survival) derived from the model. Furthermore, NMFS notes that the SARs are peer reviewed by other scientific review groups prior to being finalized and published and that the North Atlantic Right Whale Report Card (Pettis
The commenters also noted their concern regarding NARW habitat usage and seasonality, stating that NMFS was not appropriately considering relevant information on this topic. While Orsted's survey specifically intersects migratory habitat for NARWs, the year-round “core” NARW foraging habitat is located much further north in the southern area of Martha's Vineyard and Nantucket Islands where both visual and acoustic detections of NARWs indicate a nearly year-round presence (Oleson
Lastly, as we stated in the proposed notice, any impacts to marine mammals are expected to be temporary and minor, given the relative size of the survey area compared to the overall migratory route leading to foraging habitat (which is not affected by the specified activity). Comparatively, the Lease Area is approximately 568 km
Lastly, NMFS disagrees that the effects of Orsted's survey may contribute to stunted growth rates as suggested by Oceana's comments. The activities associated with Orsted's survey are outside the scope of activities described in the Steward
Section 101(a)(5)(D) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. 50 CFR 216.104(a)(1). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(D) is generally defined and described by the applicant. Here, Orsted was the applicant for the IHA, and we are responding to the specified activity as described in that application (and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing regulations, NMFS also indicated (1) that we would consider cumulative effects that are reasonably foreseeable when preparing a NEPA analysis, and (2) that reasonably foreseeable cumulative effects would also be considered under section 7 of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS has written Environmental Assessments (EA) that addressed cumulative impacts related to substantially similar activities, in similar locations,
Separately, the cumulative effects of substantially similar activities in the same geographic region have been analyzed in the past under section 7 of the ESA when NMFS has engaged in formal intra-agency consultation, such as the 2013 programmatic Biological Opinion for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New York, and New Jersey Wind Energy Areas (
NMFS is required to consider applications upon request. To date, NMFS has not received any joint applications. While an individual company owning multiple lease areas may apply for a single authorization to conduct site characterization surveys across a combination of those lease areas (see 85 FR 63508, October 8, 2020; 87 FR 13975, March 11, 2022), this is not applicable in this case. In the future, if applicants wish to undertake this approach, NMFS is open to the receipt of joint applications and additional discussions on joint actions.
The potential for impacts related to an overall increase in the amount of vessel traffic due to OSW development is separate from the aforementioned analysis of potential for vessel strike during Orsted's specified survey activities. For more information, please see the response to comment 7 discussing cumulative impacts.
It is unclear why RODA would be concerned that the OSW developers are responsible for their own impacts and “the burdens of those are not also assigned to fishermen”. Fishing impacts generally center on entanglement in fishing gear, which is a very acute, visible, and severe impact. In contrast, the pathway by which impacts occur incidental to construction or site characterization survey activities, such as those planned by Orsted here, is primarily acoustic in nature. Regardless, NMFS reiterates that this IHA does not authorize take incidental to construction activities, but site characterization survey activities, and any take beyond that authorized would be in violation of the MMPA. It is BOEM's responsibility as the permitting agency to make decisions regarding ceasing Orsted's overall offshore wind development activities, not NMFS. If the case suggested by RODA does occur, NMFS would work with BOEM and Orsted to determine the most appropriate means by which to ensure compliance with the MMPA. As noted previously in response to Comment 8, the impacts of commercial fisheries on marine mammals and incidental take for said fishing activities are indeed managed separately from those of non-commercial fishing activities such as offshore wind site characterization surveys (MMPA section 118).
In response to DNREC's request to incorporate the occurrence of additional pinnipeds in our analysis, a description of harp seals has been added to the Description of Marine Mammals in the Area of Specified Activities section as well as details pertaining to their potential occurrence in Orsted's planned survey area used in our analysis. Elsewise, no changes have occurred from the proposed to final IHA.
Since publication of the notice of proposed IHA, NMFS has acknowledged that the population estimate of NARWs is now under 350 animals (
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species or stocks for which take is expected and is authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (
As indicated above, all 16 species (with 17 managed stocks) in Table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. While harp seals have been documented in the area, the spatial occurrence of these species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. In addition to what is included in Sections 3 and 4 of Orsted's application, the SARs, and NMFS' website, further detail informing the baseline for select species (
Harp seals are highly migratory and occur throughout much of the North Atlantic and Arctic Oceans (Hayes
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. 16 marine mammal species (14 cetacean and 2 pinniped (both phocid) species) have the reasonable potential to co-occur with the survey activities. Please refer to Table 2. Of the cetacean species that may be present, five are classified as low-frequency cetaceans (
The notice of proposed IHA included a summary of the ways that Orsted's specified activity may impact marine mammals and their habitat (87 FR 15922; March 21, 2022). Detailed descriptions of the potential effects of similar specified activities have been provided in other recent
The potential effects of Orsted's specified survey activity are expected to be limited to Level B behavioral harassment. No permanent or temporary auditory effects, or significant impacts to marine mammal habitat, including prey, are expected.
This section provides an estimate of the number of incidental takes authorized through the IHA, which informs both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise from certain HRG acoustic sources. Based primarily on the characteristics of the signals by the acoustic sources planned for use, Level A harassment is neither anticipated (even absent mitigation), nor is authorized. Consideration of the anticipated effectiveness of the measures (
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Orsted's HRG survey includes the use of impulsive sources. However, as described above, NMFS has concluded that Level A harassment is not a reasonably likely outcome for marine mammals exposed to noise through use of the sources considered here, and the potential for Level A harassment is not evaluated further in this document. Please see Orsted's application for details of a quantitative exposure analysis exercise,
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
NMFS has developed a user-friendly methodology for determining the rms sound pressure level (SPL
The harassment zone is a representation of the maximum extent of the ensonified area around a sound source over a 24-hr period. The harassment area was calculated per the following formula:
The estimated potential daily active survey distance of 70 km was used as the estimated areal coverage over a 24-hr period. This distance accounts for the vessel traveling at roughly 4 kn (7.4 km/hr) and only for periods during which equipment <180 kHz is in operation. A vessel traveling 4 kn (7.4 km/hr) can cover approximately 110 km per day; however, based on data from 2017, 2018, and 2019 surveys, survey coverage over a 24-hour period is closer to 70 km per day as a result of delays due to,
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
Habitat based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts
For exposure analysis, density data from Roberts
Due to limited data availability and difficulties identifying individuals to species level during visual surveys, individual densities are not able to be provided for all species and they are instead grouped into “guilds” (Roberts
For bottlenose dolphin densities, Roberts
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
For most species, the potential Level B harassment exposures were estimated by multiplying the average annual density of each species (Table 5) within the Lease Area and ECR area by the largest daily harassment zone (19.8 km
For bottlenose dolphin densities, Roberts
No takes were calculated for sei whale, sperm whale, or Risso's dolphin; however, based on anticipated species distributions and data from previous surveys in the same general area it is possible that these species could be encountered. Therefore, Orsted requested, and NMFS authorizes, takes of these species based on estimated group sizes (Kenney and Vigness-Raposa, 2010; Barkaszi and Kelly, 2019). For common dolphins, only 70 takes were calculated. However, draft Protected Species Observer (PSO) reports from from the ongoing Garden State and Skipjack surveys near the action area and completed surveys from 2018 through 2020 indicate the potential for more common dolphins to be encountered in the area. Therefore, Orsted requested, and NMFS authorizes, take of 400 common dolphins. Calculated exposure estimates and take authorizations are shown in Table 6.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations.
The following mitigation measures will be implemented during Orsted's marine site characterization surveys. Pursuant to section 7 of the ESA, Orsted will also be required to adhere to relevant Project Design Criteria (PDC) of the NMFS Greater Atlantic Regional Office (GARFO) programmatic consultation (specifically PDCs 4, 5, and 7) regarding geophysical surveys along the U.S. Atlantic coast (see NOAA GARFO, 2021;
Marine mammal EZ will be established around the HRG survey equipment and monitored by NMFS-approved PSOs:
• 500 m EZ for NARWs during use of acoustic sources <180 kHz (
• 100 m EZ for all other marine mammals, with certain exceptions specified below, during operation of impulsive acoustic sources (boomer and/or sparker).
If a marine mammal is detected approaching or entering the EZs during the HRG survey, the vessel operator will adhere to the shutdown procedures described below to minimize noise impacts on the animals. These stated requirements will be included in the site-specific training to be provided to the survey team.
Marine mammal clearance zones will be established around the HRG survey equipment and monitored by PSOs:
• 500 m for all ESA-listed marine mammals; and
• 100 m for all other marine mammals.
Orsted will implement a 30-minute pre-start clearance period prior to the initiation of ramp-up of specified HRG equipment. During this period, clearance zones will be monitored by PSOs, using the appropriate visual technology. Ramp-up may not be initiated if any marine mammal(s) is within its respective clearance zone. If a marine mammal is observed within a clearance zone during the pre-star clearance period, ramp-up may not begin until the animal(s) has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting (
A ramp-up procedure, involving a gradual increase in source level output, is required at all times as part of the activation of the acoustic source when technically feasible. The ramp-up procedure will be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment operation at full power. Operators should ramp-up sources to half power for 5 minutes and then proceed to full power.
Ramp-up activities will be delayed if a marine mammal(s) enters its respective exclusion zone. Ramp-up will continue if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting (
Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic source activation may only occur at night where operational planning cannot reasonably avoid such circumstances.
An immediate shutdown of the impulsive HRG survey equipment will be required if a marine mammal is sighted entering or is within its respective exclusion zone. The vessel operator must comply immediately with any call for shutdown by the Lead PSO. Any disagreement between the Lead PSO and vessel operatory should be discussed only after shutdown has occurred. Subsequent restart of the survey equipment can be initiated if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed (
If species for which authorization has not been granted, or, a species for which authorization has been granted but the authorization number of takes have been met, approaches or is observed within the Level B harassment zone (Table 4), shutdown will occur.
If the acoustic source is shut down for reasons other than mitigation (
The shutdown requirement will be waived for pinnipeds and for small delphinids of the following genera:
Shutdown, pre-start clearance, and ramp-up procedures are not required during HRG survey operations using only non-impulsive sources (
Orsted must adhere to the following measures except in the case where compliance will create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply:
• Vessel operators and crews must maintain a vigilant watch for all protected species and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any protected species. A visual observer aboard the vessel must monitor a vessel strike avoidance zone based on the appropriate separation distance around the vessel (distances stated below). Visual observers monitoring the vessel
• All survey vessels, regardless of size, must observe a 10 kn (18.5 km/hr) speed restriction in specified areas designated by NMFS for the protection of NARWs from vessel strikes including SMAs and DMAs when in effect;
• Members of the monitoring team will consult NMFS NARW reporting system and Whale Alert, as able, for the presence of NARWs throughout survey operations, and for the establishment of a DMA. If NMFS should establish a DMA in the survey area during the survey, the vessels will abide by speed restrictions in the DMA;
• All vessels greater than or equal to 19.8 m in overall length operating from November 1 through April 30 will operate at speeds of 10 kn (18.5 km/hr) or less at all times;
• All vessels must reduce their speed to 10 kn (18.5 km/hr) or less when mother/calf pairs, pods, or large assemblages of any species of cetaceans is observed near a vessel;
• All vessels must maintain a minimum separation distance of 500 m from right whales and other ESA-listed large whales;
• If a whale is observed but cannot be confirmed as a species other than a right whale or other ESA-listed large whale, the vessel operator must assume that it is a right whale and take appropriate action;
• All vessels must maintain a minimum separation distance of 100 m from non-ESA listed whales;
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible (
• When marine mammals are sighted while a vessel is underway, the vessel shall take action as necessary to avoid violating the relevant separation distance (
Project-specific training will be conducted for all vessel crew prior to the start of a survey and during any changes in crew such that all survey personnel are fully aware and understand the mitigation, monitoring, and reporting requirements. Prior to implementation with vessel crews, the training program will be provided to NMFS for review and approval. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew member understands and will comply with the necessary requirements throughout the survey activities.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered to by NMFS, NMFS has determined that the mitigation measures provide the means of effective the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Visual monitoring will be performed by qualified, NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. Orsted will employ independent, dedicated, trained PSOs, meaning that the PSOs must (1) be employed by a third-party observer provider, (2) have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and (3) have successfully completed an approved PSO training course appropriate for their designated task. On a case-by-case basis, non-independent observers may be approved by NMFS for limited, specified duties in support of approved, independent PSOs on smaller vessels with limited crew operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding each survey vessel to the farthest extent permitted by sighting conditions, including exclusion zones, during all HRG survey operations. PSOs will visually monitor and identify marine mammals, including those approaching or entering the established exclusion zones during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.
During all HRG survey operations (
PSOs must be equipped with binoculars and have the ability to estimate distance and bearing to detect marine mammals, particularly in proximity to exclusion zones. Reticulated binoculars must also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine mammals. During nighttime operations, night-vision goggles with thermal clip-ons and infrared technology will be used. Position data will be recorded using hand-held or vessel GPS units for each sighting.
During good conditions (
Within 90 days after completion of survey activities or expiration of this IHA, whichever comes sooner, a draft comprehensive report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals observed during survey activities (by species, when known), summarizes the mitigation actions taken during surveys including what type of mitigation and the species and number of animals that prompted the mitigation action, when known), and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. A final report must be submitted within 30 days following any comments on the draft report. All draft and final marine mammal and acoustic monitoring reports must be submitted to
• PSO names and affiliations;
• Dates of departures and returns to port with port names;
• Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;
• Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts;
• Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;
• Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon;
• Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
• Survey activity information, such as type of survey equipment in operation, acoustic source power output while in operation, and any other notes of significance (
If a marine mammal is sighted, the following information should be recorded:
• Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
• PSO who sighted the animal;
• Time of sighting;
• Vessel location at time of sighting;
• Water depth;
• Direction of vessel's travel (compass direction);
• Direction of animal's travel relative to the vessel;
• Pace of the animal;
• Estimated distance to the animal and its heading relative to vessel at initial sighting;
• Identification of the animal (
• Estimated number of animals (high/low/best);
• Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);
• Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
• Detailed behavior observations (
• Animal's closest point of approach and/or closest distance from the center point of the acoustic source;
• Platform activity at time of sighting (
• Description of any actions implemented in response to the sighting (
If a NARW is observed at any time by PSOs or personnel on any project vessels, during surveys or during vessel transit, Orsted must immediately report sighting information to the NMFS NARW Sighting Advisory System: (866) 755-6622. NARW sightings in any location may also be reported to the U.S. Coast Guard via channel 16.
In the event that Orsted personnel discover an injured or dead marine mammal, Orsted will report the incident to the NMFS Office of Protected Resources OPR) and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report will include the following information:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
In the unanticipated event of a ship strike of a marine mammal by any vessel involved in this activities covered by the IHA, Orsted will report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report will include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Species identification (if known) or description of the animal(s) involved;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
• Environmental conditions (
• Estimated size and length of animal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
In addition to being temporary, the maximum expected harassment zone around the survey vessel is 141 m. Therefore, the ensonified area surrounding each vessel is relatively small compared to the overall distribution of the animals in the area and their use of the habitat. Feeding behavior is not likely to be significantly impacted as prey species are mobile and are broadly distributed throughout the survey area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the survey area and there are no feeding areas known to be biologically important to marine mammals within the survey area. The survey area lies significantly south (over 250 miles (402 km)) of where Biologically Important Areas are defined for fin and humpback whales. Therefore, they are not considered to be “nearby” the survey area and are not discussed further. There is no designated critical habitat for any ESA-listed marine mammals in the survey area.
The status of the NARW population is of heightened concern and therefore, merits additional analysis. As noted previously, elevated NARW mortalities began in June 2017 and there is an active UME. Overall, preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of right whales. The survey area overlaps with a migratory corridor Biologically Important Area (BIA) for NARWs (effective March-April; November-December) that extends from Massachusetts to Florida (LaBrecque
As noted previously, there are several active UMEs occurring in the vicinity of Orsted's survey area. Elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or DPS) remains stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. This event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales.
The required mitigation measures are expected to reduce the number and/or severity of authorized takes for all species listed in Table 6, including those with active UMEs, to the level of least practicable adverse impact. In particular, they would provide animals the opportunity to move away from the sound source throughout the survey area before HRG survey equipment reaches full energy, thus preventing them from being exposed to sound levels that have the potential to cause injury (Level A harassment) or more severe Level B harassment. No Level A harassment is anticipated, even in the absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B behavioral harassment by way of brief startling reactions and/or temporary vacating of the area, or decreased foraging (if such activity was occurring)—reactions that (at the scale and intensity anticipated here) are considered to be of low severity, with no lasting biological consequences. Since both the sources and marine mammals are mobile, animals will only be exposed briefly to a small ensonified area that might result in take. Additionally, the required mitigation measures will further reduce exposure to sound that could result in more severe behavioral harassment.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized;
• No Level A harassment (PTS) is anticipated, even in the absence of mitigation measures, or authorized;
• Foraging success is not likely to be significantly impacted as effects on species that serve as prey species for marine mammals from the survey are expected to be minimal;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the planned survey to avoid exposure to sounds from the activity;
• Take is anticipated to be of Level B behavioral harassment only consisting of brief startling reactions and/or temporary avoidance of the survey area;
• While the survey area is within areas noted as a migratory BIA for NARWs, the activities will occur in such a comparatively small area such that any avoidance of the survey area due to activities would not affect migration. In addition, mitigation measures require shutdown at 500 m (almost four times the size of the Level B harassment isopleth (141 m), which minimizes the effects of the take on the species; and
• The mitigation measures, including visual monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS authorizes is below one third of the estimated stock abundance for all species (in fact, take of individuals is less than 5 percent of the abundance of the affected stocks for these species, see Table 6) except for the WNA northern migratory coastal stock of bottlenose dolphins. The figures presented in Table 6 are likely conservative estimates as they assume all takes are of different individual animals which is likely not to be the case. Some individuals may return multiple times in a day, but PSOs will count them as separate takes if they cannot be individually identified. This is the particularly the case for bottlenose dolphins.
As mentioned above, there are two bottlenose dolphin stocks that could occur in the survey area: The WNA Offshore and WNA northern migratory coastal stocks. Given the uncertainty regarding the number of days Orsted's survey may be within the 20 m isobath, the authorization of 2,752 instances of take by Level B harassment is not allocated to a specific stock but rather could be of either stock. However, based on the stocks' respective occurrence in the area and the consideration of
Both the northern migratory and offshore stocks have expansive ranges and are the only dolphin stocks thought to make broad-scale, seasonal migrations in the coastal waters of the North Atlantic. Given the large ranges associated with these two stocks, it is unlikely that large segments of either stock would consistently remain in the survey area. The majority of both stocks are likely to be found widely dispersed across their respective habitat ranges, and individuals within each stock migrate on a seasonal basis.
The northern migratory stock spans from the shelf waters of Florida to Long Island, New York and experience spatiotemporal overlap with several other bottlenose dolphin stocks in the Western North Atlantic. The stock is best defined by its distribution during summer water months (July and August), when it overlaps with the fewest stocks, during which it occupies coastal waters from the shoreline to approximately the 20-m isobath between Assateague, Virginia and Long Island, New York (Hayes
Further, many of the dolphin observations in the Delaware Bay and South of Cape May, NJ are likely repeated sightings of the same individuals. A by Toth
The offshore stock is distributed primarily along the outer continental shelf and continental slope in the Northwest Atlantic Ocean from Georges Band to the Florida Keys (Hayes
In summary and as described above, the following factors primarily support our determination regarding the incidental take of small numbers of the affected stocks of a species or stock:
• The take of marine mammal stocks comprises less than 5 percent of any stock abundance (with the exception of the northern migratory stock of bottlenose dolphins);
• Potential bottlenose dolphin takes in the survey area are likely to be allocated between both distinct stocks;
• Bottlenose dolphin stocks in the survey area have extensive ranges and it would be unlikely to find a high percentage of individuals from either stock concentrated in a relatively small area such as the survey area;
• Many of the takes would likely be repeats of the same animals, especially during summer months.
Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS is authorizing the incidental take of four species of marine mammals which are listed under the ESA, including the North Atlantic right, fin, sei, and sperm whale, and has determined that these activities fall within the scope of activities analyzed in GARFO's programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021). The consultation concluded that NMFS' issuance of incidental take authorization related to these activities are not likely to adversely affect ESA-listed marine mammals.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.
NMFS has issued an IHA to Orsted and its designees for the potential harassment of small numbers of 16 marine mammal species incidental to their marine site characterization survey offshore of Delaware, which includes the previously explained mitigation, monitoring and reporting requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold meetings of the following: Snapper Grouper Committee; Dolphin Wahoo Committee; and Citizen Science Committee. The meeting week will also include an informal public Question and Answer (Q&A) session, formal public comment session, a public hearing, and a meeting of the Full Council.
The Council meetings will be held from 8:30 a.m. on Monday, June 13, 2022, until 12 p.m. on Friday, June 17, 2022.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8440 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
Meeting information, including agendas, overviews, and briefing book materials will be posted on the Council's website at:
The items of discussion in the individual meeting agendas are as follows:
The Council will review applications for its advisory panels, Scientific and Statistical Committee (SSC), and Socio-Economic Panel (SEP) and consider appointments. The Council will also review nominations for the 2021 Law Enforcement Officer of the Year.
The Council will receive reports from state agencies, Council liaisons, NOAA Office of Law Enforcement, and the U.S. Coast Guard. The Council will review input from the SEP on a data-gathering tool to inform sector allocations, review an options paper for the Commercial Electronic Logbook Amendment, review the Acceptable Biological Catch Control Rule Amendment, and receive a presentation from NOAA Fisheries on progress towards meeting the Council's research recommendations.
The Committee will review input received on Snapper Grouper Regulatory Amendment 35 (Release Mortality Reduction and Red Snapper Catch Levels) from its Snapper Grouper Advisory Panel (AP) and the SSC and receive an overview of options for the amendment. The Committee will provide further guidance on actions to explore in the amendment to reduce the number of dead releases in the fishery and improve survival of released fish.
The Committee will review Snapper Grouper Amendment 53 addressing management of Gag, consider recommendations from the AP, and receive an overview of the amendment and analyses to date. The Committee will review Snapper Grouper Amendment 52, addressing management of golden tilefish and blueline tilefish, and Amendment 51, addressing management of snowy grouper. The Committee will consider recommendations from the AP, receive an overview of the amendments and analyses to date, and consider approving the amendments for public hearings.
The Committee will consider recommendations from its AP on Snapper Grouper Amendment 49, addressing management of greater amberjack, and receive an overview and update on analyses to date. A public hearing for Snapper Grouper Amendment 49 will be held as part of the public comment period scheduled for Wednesday, June 15, at 4 p.m. Finally, the Committee will receive input from the AP on items not addressed on the agenda, receive an update on the South Atlantic Reef Fish Observer Coverage Expansion, and review any Exempted Fishery Permits if needed.
The Council will host an informal Q&A for members of the public to discuss issues relevant to federal fisheries management in the South Atlantic region.
The Committee will receive recommendations from its Dolphin Wahoo AP on Regulatory Amendment 3 to the Dolphin Wahoo Fishery Management Plan for the Atlantic. The draft amendment currently includes options to address size limits and recreational retention limits for Dolphin. The Committee will also consider AP input on items not on the agenda and receive a presentation from NOAA Fisheries on the Development of Empirical Management Procedures for Dolphin.
The Committee will receive a presentation on program evaluation interview findings and next steps, highlights from the FISHstory project, an update on the snowy grouper project and a general program update.
The Council will receive a briefing on any legal issues, if needed, followed by a Council Coordination Committee report. The Council will receive reports from staff, an update on the Large Whale Take Reduction Team meeting and receive input from the SSC and SEP on items not on the meeting agenda. The Council will receive reports from NOAA Fisheries Southeast Regional Office and the Southeast Fisheries Science Center.
The Council will receive Committee reports, review its workplan for the next quarter, upcoming meetings, and take action as necessary. The Council will discuss any other business as needed.
Documents regarding these issues are available from the Council office (see
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of public meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the National Sea Grant Advisory Board (Board), a Federal Advisory Committee. Board members will discuss and provide advice on the National Sea Grant College Program (Sea Grant) in the areas of program evaluation, strategic planning, education and extension, science and technology programs, and other matters as described in the agenda found on the Sea Grant website. For more information on this Federal Advisory Committee please visit the Federal Advisory Committee database:
The announced meeting is scheduled for Wednesday June 8, 2022 from 1:00 p.m.-4:00 p.m. (EDT).
The meeting will be held virtually only. For more information and for virtual access see below in the “Contact Information” section.
For any questions concerning the meeting, please contact Ms. Donna Brown, National Sea Grant College Program. Email:
The Board, which consists of a balanced representation from academia, industry, state government and citizens groups, was established in 1976 by Section 209 of the Sea Grant Improvement Act (Pub. L. 94-461, 33 U.S.C. 1128). The Board advises the Secretary of Commerce and the Director of the National Sea Grant College Program with respect to operations under the Act, and such other matters as the Secretary refers to them for review and advice.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of application; two scientific research and enhancement permits.
Notice is hereby given that NMFS has received permit application requests for two new scientific research and enhancement permits for black abalone. The proposed work is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and to help guide management, conservation, and recovery efforts. The applications may be viewed online at:
Comments or requests for a public hearing on the application must be received at the provided email address (see
All written comments on the applications should be submitted by email to
Susan Wang, Long Beach, CA (email:
Endangered black abalone (
Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531
Anyone requesting a hearing on the application listed in this notice should set out the specific reasons why a hearing on the application would be appropriate (see
The University of California, Santa Cruz (UCSC), has requested a research and enhancement permit to authorize the rescue and relocation of black abalone in response to emergency events that pose a risk to black abalone and their habitat. Emergency events include oil spills, landslides, debris flows, and vessel groundings. The purpose of the research and enhancement permit is to enhance the survival of endangered black abalone through rescue and relocation. The permit would authorize activities for ten years.
Activities would include collection of black abalone and removal from the wild, captive holding for one day to several months, reintroduction to the wild, and monitoring. Activities would also include long-term holding, spawning, culturing, and experimental outplanting studies. Collected abalone would be photographed, measured, weighed, visually assessed for health and gonad condition, genetically sampled (
The UCSC has also requested a research and enhancement permit to authorize the collection and transplanting of black abalone. The purpose of this permit is to advance recovery of black abalone by evaluating transplantation as a tool to re-establish populations where they have been locally extirpated and to enhance populations that have experienced declines. The permit would authorize activities for five years.
Activities would include collection of black abalone and removal from the wild, captive holding for one to several days, release at the restoration sites, and monitoring. Collected abalone would be photographed, measured, weighed, visually assessed for health and gonad condition, genetically sampled (
This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the applications, associated documents, and comments submitted to determine whether the applications meet the requirements of section 10(a) of the ESA and Federal regulations. The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the
U.S. International Development Finance Corporation (DFC).
Notice of information collection; request for comment.
Under the provisions of the Paperwork Reduction Act, agencies are required to publish a Notice in the
Comments must be received by July 18, 2022.
Comments and requests for copies of the subject information collection may be sent by any of the following methods:
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Agency Submitting Officer: Deborah Papadopoulos, (202) 357-3979.
This notice informs the public that DFC will submit to OMB a request for approval of the following information collection.
U.S. International Development Finance Corporation (DFC).
Notice of information collection; request for comment.
Under the provisions of the Paperwork Reduction Act, agencies are required to publish a Notice in the
Comments must be received by July 18, 2022.
Comments and requests for copies of the subject information collection may be sent by any of the following methods:
•
•
Agency Submitting Officer: Deborah Papadopoulos, (202) 357-3979.
This notice informs the public that DFC will submit to OMB a request for approval of the following information collections.
Office of Management (OM), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of a currently approved information collection.
Interested persons are invited to submit comments on or before July 18, 2022.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Frank Miller, (202) 453-6631.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
On March 2, 2022, ANR Pipeline Company (ANR) filed an application in Docket No. CP22-63-000 requesting Authorization pursuant to Section 7(b) of the Natural Gas Act to abandon certain natural gas pipeline facilities in Montcalm County, Michigan. The proposed project is known as the Winfield Storage Field Abandonment Project (Project). According to ANR, due to the Winfield Storage Field's late season performance reliability and a reduction of the storage field's certificated working gas capacity in 2014, the Winfield Storage Field is not relied upon to meet ANR's firm contractual obligations on its system.
On March 16, 2022, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's environmental document for the Project.
This notice identifies Commission staff's intention to prepare an
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
ANR proposes to abandon the Winfield Storage Field by conducting the following activities: Permanently plugging 72 natural gas injection/withdrawal wells; abandoning 15 miles of associated 4-inch, 6-inch, and 10-inch diameter well lines in the storage field; abandoning 4.43 miles of the 16-inch-diameter Winfield Interconnect storage lateral (Lateral 249); abandoning by removal of the Winfield Compressor Station, including all belowground and aboveground structures; and abandoning by removal of all below-ground and aboveground appurtenances in the storage field.
On April 12, 2022, the Commission issued a
In order to receive notification of the issuance of the EA and to keep track of formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l. Deadline for filing additional study requests and requests for cooperating agency status: June 28, 2022.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. This application is not ready for environmental analysis at this time.
n. The Victory Mills Project includes: (1) A dam that consists of: (a) An approximately 150-foot-long concrete spillway varying in height from 4 to 6 feet with a crest elevation of 187.5 feet National Geodetic Vertical Datum of 1929 (NGVD29), and (b) a sluice gate section approximately 19 feet high and 40 feet long with four gated spillway bays, each with a sill elevation of 181 feet NGVD29 and containing a 7-foot-high by 8-foot-wide wooden timber gate; (2) a 4.3-acre reservoir with a gross storage capacity of approximately 18 acre-feet at the normal surface elevation of 187.5 feet NGVD29; (3) an intake channel feeding a 51-foot-long, 25-foot-high concrete intake structure; (4) an 8-foot-diameter, 300-foot-long steel penstock; (5) a 27-foot by 46-foot concrete powerhouse containing a single Kaplan turbine with an installed capacity of 1,656 kilowatts; (6) an approximately 30-foot-wide by 530-foot-long tailrace channel; (7) a 480-foot-long, 4.8-kilovolt transmission line; and (8) appurtenant facilities.
The Victory Mills Project operates in a run-of-river mode with an average annual generation of 6,073 megawatt-hours between 2011 and 2021.
o. A copy of the application can be viewed on the Commission's website at
You may also register online at
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
The license for the Wyre Wind Hydroelectric Project No. 3472 was issued for a period ending April 30, 2022.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 3472 is issued to Aspinook Hydro, LLC. for a period effective May1, 2022 through April 30, 2023, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before April 30, 2023, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Aspinook Hydro, LLC. is authorized to continue operation of the Wyre Wynd Hydroelectric Project under the terms and conditions of the prior license until the issuance of a new license for the project or other disposition under the FPA, whichever comes first.
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j. Rivers Electric filed its request to use the TLP on March 29, 2022 and provided public notice of its request on March 30, 2022. In a letter dated May 11, 2022, the Director of the Division of Hydropower Licensing approved Rivers Electric's request to use the TLP.
k. With this notice, we are initiating informal consultation with the U.S. Fish
l. With this notice, we are designating Rivers Electric as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. Rivers Electric filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed on the Commission's website (
o. The applicant states its unequivocal intent to submit an application for a subsequent license for Project No. 9985. Pursuant to 18 CFR 16.20 each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by March 31, 2025.
p. Register online at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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The license for the Mother Ann Lee Hydroelectric Project No. 539 was issued for a period ending April 30, 2022.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 539 is issued to Lock 7 Hydro Partners for a period effective May 1, 2022 through April 30, 2023, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before April 30, 2023, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Lock 7 Hydro Partners is authorized to continue operation of the Mother Ann Lee Hydroelectric Project under the terms and conditions of the prior license until the issuance of a new license for the project or other disposition under the FPA, whichever comes first.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document, that will discuss the environmental impacts of the Venture Global Plaquemines LNG Uprate Amendment Project (Project) involving operation of facilities by Venture Global Plaquemines LNG, LLC (Plaquemines LNG) in Plaquemines 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 June 10, 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 March 11, 2022, you will need to file those comments in Docket No. CP22-92-000 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.
Plaquemine LNG 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
Plaquemines LNG proposes to increase the Export Terminal's authorized peak liquefaction capacity achievable under optimal conditions from 24.0 million metric tons per annum to 27.2 million metric tons per annum of LNG—or from approximately 1,240 billion cubic feet to approximately 1,405.33 billion cubic feet per year (gas equivalence). According to Plaquemines LNG, 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 Venture Global Plaquemines LNG 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
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j. The Village of Saranac Lake filed its request to use the TLP on March 31, 2022, and provided public notice of its request on April 1, 2022.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and
l. With this notice, we are designating the Village of Saranac Lake as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and consultation pursuant to section 106 of the National Historic Preservation Act.
m. The Village of Saranac Lake filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed on the Commission's website (
o. The applicant states its unequivocal intent to submit an application for a subsequent license for Project No. 8369. Pursuant to 18 CFR 16.20 each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by September 30, 2025.
p. Register online 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:
The license for the Lower Great Falls Hydroelectric Project No. 4451 was issued for a period ending April 30, 2022.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 4451 is issued to Green Mountain Power Corporation and the City of Somersworth, New Hampshire for a period effective May 1, 2022 through April 30, 2023 or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before April 30, 2023, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Green Mountain Power Corporation and the City of Somersworth, New Hampshire are authorized to continue operation of the Lower Great Falls Hydroelectric Project under the terms and conditions of the prior license until the issuance of a new license for the project or other disposition under the FPA, whichever comes first.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, protests, and recommendations is 30 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that on April 22, 2022, pursuant to Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 (2021), Owen Stanley Parker (Complainant) filed a formal complaint against Permian Highway Pipeline LLC, Kinder Morgan Texas Pipeline LLC, Kinder Morgan Inc., EagleClaw Midstream Ventures LLC, Altus Midstream Energy, and ExxonMobil Permian Highway Pipeline LLC (collectively, Respondents), alleging that Respondents constructed a natural gas pipeline without prior authorization from the Commission, in violation of section 7 of the Natural Gas Act.
The Complainant states that copies of the complaint have been provided to the Respondents.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainant.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
In addition to publishing the full text of this document in the
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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the Holbrook Compressor Station Units Replacement Project (Project), proposed by Texas Eastern Transmission LP (Texas Eastern) in the above-referenced docket. Texas Eastern requests authorization to abandon 12 existing reciprocating compressor units dating from the 1950s and replace them with 2 new compressor units at its existing Holbrook Compressor Station (Station), in Greene County, Pennsylvania.
The EA assesses the potential environmental effects of the construction and operation of the Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the Project would result in some adverse environmental impacts. However, if the Project is constructed and operated in accordance with the mitigation measures discussed in this EA, and our recommendations, approval of the proposed Project would not constitute a major federal action significantly affecting the quality of the human environment.
The Commission mailed a copy of the
The EA is not a decision document. It presents Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding.
Any person wishing to comment on the EA may do so. Your comments should focus on the EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure consideration of your comments, it is important that the Commission receive your comments on or before 5:00 p.m. Eastern Time on June 13, 2022.
For your convenience, there are three methods you can use to file your comments to the Commission. 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 also file your comments electronically 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 (CP21-463-000) 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.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at
Additional information about the Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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b.
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d.
e.
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g.
h.
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The Commission strongly encourages electronic filing. Please file motions to intervene and protests 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 but is not ready for environmental analysis.
l.
Moretown hydroelectric LLC proposes to continue the operation the operation of the project in a run-of-river mode.
m. In addition to publishing the full text of this document in the
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (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 protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
o.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments and recommendations for the proposed information collection should be submitted on or before June 17, 2022.
Comments should be sent to
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
On November 22, 2019, the Commission adopted the
On March 12, 2020, the President signed into law the Secure and Trusted Communications Networks Act of 2019 (Secure Networks Act), Public Law 116-124, 133 Stat. 158 (2020) (codified as amended at 47 U.S.C. 1601-1609), which among other measures, directs the FCC to establish the Secure and Trusted Communications Networks Reimbursement Program (Reimbursement Program). This program is intended to provide funding to providers of advanced communications service for the removal, replacement and disposal of certain communications equipment and services that poses an unacceptable national security risk (
On December 10, 2020, the Commission adopted the
On December 27, 2020, the President signed into law the Consolidated Appropriations Act, 2021 (CAA), appropriating $1.9 billion to “carry out” the Reimbursement Program and amending the Reimbursement Program eligibility requirements to expand eligibility to include providers of advanced communications service with 10 million or fewer subscribers and making clear that schools, libraries, and health care providers are eligible to receive Reimbursement Program support to the extent they qualify as providers of advanced communications services.
Separate from the Reimbursement Program, the Secure Networks Act requires all providers of advanced communications service to annually report, with exception, on whether they have purchased, rented, leased or otherwise obtained covered communications equipment or service on or after certain dates. 47 U.S.C. 1603(d)(2)(B). The
The Commission therefore propose to revise this information collection, as well as Form 5460, to reflect this new requirement contained in the
The Commission hereby gives notice of filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than June 2, 2022.
1.
Board of Governors of the Federal Reserve System.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for supplemental evidence and data submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review on
Jenae Benns, Telephone: 301-427-1496 or Email:
The Agency for Healthcare Research and Quality has commissioned the Evidence-based Practice Centers (EPC) Program to complete a review of the evidence for
The EPC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by requesting information from the public (
This is to notify the public that the EPC Program would find the following information on Pharmacotherapy for Adults with Alcohol-Use Disorders in Outpatient Settings: Systematic Review Update helpful:
A list of completed studies that your organization has sponsored for this indication. In the list, please
Description of whether the above studies constitute
Your contribution is very beneficial to the Program. Materials submitted must be publicly available or able to be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EPC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EPC Program website and
○ Adults (age 18 years or older) with alcohol-use disorders.
○ Pharmacotherapy for relapse prevention. This includes:
Medications approved by FDA for treating alcohol dependence:
• Acamprosate
• disulfiram
• naltrexone (oral or injectable)
Certain medications in use off label that are available in the United States:
○ Studies evaluating pharmacotherapy that used co-interventions with other treatments for AUDs (
○ This review will not include pharmacotherapy for alcohol withdrawal.
○ Studies must compare one of the medications listed above with placebo or another eligible medication.
○ Consumption outcomes:
○ Health outcomes:
○ Adverse effects of intervention(s):
○ Studies with at least 12 weeks of planned pharmacologic treatment and followup from the time of medication initiation.
○ Outpatient healthcare settings; KQ 4 applies to primary care settings only (
Children's Bureau, Administration for Children and Families, HHS.
Request for public comment.
The Children's Bureau (CB), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is requesting a 3-year extension of the Plan for Foster Care and Adoption Assistance—Title IV-E, (OMB#: 0970-0433, expiration 11/30/2022). This plan also incorporates the plan requirements for the optional Guardianship Assistance program, the Title IV-E Prevention Services plan and the Title IV-E Kinship Navigator program. There are no changes 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
Title IV-E of the Act was amended by Public Law 115-123, which included the Family First Prevention Services Act (FFPSA). FFPSA authorized new optional Title IV-E funding for time-limited (1 year) prevention services for mental health/substance abuse and in-home parent skill-based programs for (1) a child who is a candidate for foster care (as defined in section 475(13) of the Act), (2) pregnant/parenting foster youth, and (3) the parents/kin caregivers of those children and youth (sections 471(e), 474(a)(6), and 475(13) of the Act). Title IV-E prevention services must be rated as promising, supported, or well supported in accordance with HHS criteria and be approved by HHS (section 471(e)(4)(C) of the Act) as part of the Title IV-E Prevention Services Clearinghouse (section 476(d)(2) of the Act). A state or tribal Title IV-E agency electing to participate in the program must submit a 5-year Title IV-E Prevention Program Plan that meets the statutory requirements. (See Program Instructions ACYF-CB-PI-18-09 and ACYF-CB-PI-18-10 for more information.)
FFPSA also amended section 474(a)(7) of the Act to reimburse state and tribal Title IV-E agencies for a portion of the costs of operating kinship navigator programs that meet certain criteria. To qualify for funding under the Title IV-E Kinship Navigator Program, the program must meet the requirements of a kinship navigator program described in section 427(a)(1) of the Act. The Kinship Navigator Program must meet practice criteria of promising, supported, or well-supported in accordance with HHS criteria and be approved by HHS (section 471(e)(4)(C) of the Act). To begin participation in the Title IV-E Kinship Navigator Program, a Title IV-E agency must submit an attachment to its Title IV-E plan that specifies the kinship navigator model it has chosen to implement and the date on which the provision of program services began or will begin, and provide an assurance that the model meets the requirements of section 427(a)(1) of the Act, as well as a brief narrative describing how the program will be operated. (Please see Program Instruction ACYF-CB-PI-18-11 for additional information:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) announces a forthcoming public advisory committee meeting of the Science Board to the Food and Drug Administration. The Science Board provides advice to the Commissioner of Food and Drugs and other appropriate officials on specific, complex scientific and technical issues important to FDA and its mission, including emerging issues within the scientific community. Additionally, the Science Board provides advice to the Agency on keeping pace with technical and scientific developments, including in regulatory science, input into the Agency's research agenda, and on upgrading its scientific and research facilities and training opportunities. It will also provide, where requested, expert review of Agency-sponsored intramural and extramural scientific research programs. The meeting will be open to the public.
The meeting will be held virtually on June 14, 2022, from 9 a.m. to 4 p.m. Eastern Time.
Please note that due to the impact of this COVID-19 pandemic, all meeting participants will be joining this advisory committee meeting via an online teleconferencing platform. Answers to commonly asked questions about FDA advisory committee meetings may be accessed at:
Rakesh Raghuwanshi, Office of the Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 3309, Silver Spring, MD 20993, 301-796-4769,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available on FDA's website at the time of the advisory committee meeting. Background material and the link to the online teleconference meeting room will be available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Rakesh Raghuwanshi (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Safety Considerations for Container Labels and Carton Labeling Design to Minimize Medication Errors.” The guidance focuses on safety aspects of the container label and carton labeling design for human prescription drug and biological products. The guidance provides sponsors of new drug applications (NDAs), biologics license applications (BLAs), abbreviated new drug applications (ANDAs), and prescription drugs marketed without an approved NDA or ANDA with a set of principles and recommendations for ensuring that critical elements of product container labels and carton labeling are designed to promote safe dispensing, administration, and use of the product. This guidance finalizes the draft guidance of the same title issued on April 24, 2013.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Irene Z. Chan, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 4420, Silver Spring, MD 20993-0002, 301-796-3962; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a guidance for industry entitled “Safety Considerations for Container Labels and Carton Labeling Design To Minimize Medication Errors.” In Title I of the Food and Drug Administration Amendments Act of 2007 (FDAAA) (Pub. L. 110-85), Congress reauthorized and expanded the Prescription Drug User Fee Act (PDUFA) program for fiscal years 2008 through 2012. As part of the performance goals and procedures set forth in an enclosure to the letter from the Secretary of Health and Human Services referred to in section 101(c) of FDAAA, FDA committed to certain performance goals and procedures. (See
This guidance is intended to help entities holding NDAs, BLAs, and ANDAs and entities manufacturing or distributing prescription drugs marketed without an approved application. This guidance focuses on safety aspects of the application holder's container label and carton labeling design, and it provides a set of principles and recommendations for ensuring that critical elements of a product's container label and carton labeling are designed to promote safe dispensing, administration, and use of the product.
The recommendations in this guidance are intended to provide best practices on how to improve the container label and carton labeling of prescription drug and biological products to minimize medication errors. The guidance also provides examples of container label and carton labeling designs that resulted in postmarketing medication errors.
This guidance finalizes the draft guidance entitled “Safety Considerations for Container Labels and Carton Labeling Design to Minimize Medication Errors” published in the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Safety Considerations for Container Labels and Carton Labeling Design to Minimize Medication Errors.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001. The collections of information in 21 CFR part 601 have been approved under OMB control number 0910-0338. The collections of information in 21 CFR part 203 described in the final rule entitled “Prescription Drug Marketing Act of 1987; Prescription Drug Amendments of 1992; Policies, Requirements, and Administrative Policies” have been approved under OMB control number 0910-0435. The collections of information in part 201 (21 CFR part 201) described in the final rule entitled “Bar Code Label Requirement for Human Drug Products and Biological Products” have been approved under OMB control number 0910-0537. The collections of information for prescription drug product labeling in § 201.56 and 201.57 (21 CFR 201.56 and 201.57) have been approved under OMB control number 0910-0572. The collections of information described in the FDA guidance for industry entitled “Drug Supply Chain Security Act Implementation: Identification of Suspect Product and Notification” have been approved under OMB control number 0910-0806.
In addition, the inclusion of warning statements on labels for certain drug products would be exempt from review by OMB under the PRA because the public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public is not included within the definition of “collection of information” (see 5 CFR 1320.3(c)(2)).
Persons with access to the internet may obtain the guidance at
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Assessing User Fees Under the Generic Drug User Fee Amendments of 2017.” This guidance provides stakeholders information regarding the implementation of the Generic Drug User Fee Amendments of 2017 (GDUFA II) and policies and procedures surrounding its application. This guidance is finalizing FDA's draft guidance for industry “Assessing User Fees Under the Generic Drug User Fee Amendments of 2017,” published in November 2019.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Keith F. Verrett Jr., Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Rm. 2179, Silver Spring, MD 20993-0002, 301-796-7900,
FDA is announcing the availability of a guidance for industry entitled “Assessing User Fees Under the Generic Drug User Fee Amendments of 2017.” GDUFA II (Pub. L. 115-52, Title III), was signed into law on August 18, 2017. GDUFA II extends FDA's authority to assess and collect generic drug user fees from fiscal year (FY) 2018 through FY 2022. The extension of this user fee authority under GDUFA II continues FDA's and industry's ability to meet the goals of improving public access to safe and effective generic drugs and enhancing the predictability of the review process.
The guidance announced in this notice replaces the draft guidance for industry on “Assessing User Fees Under the Generic Drug User Fee Amendments of 2017,” dated October 2019 and published in November 2019. This guidance addresses changes in user fee assessments from GDUFA I, user fees incurred by industry under GDUFA II, payment procedures, reconsideration and appeals, and other additional information to assist industry in complying with GDUFA II. This guidance also describes how FDA determines affiliation for purposes of assessing generic drug user fees.
FDA has reviewed the comments submitted to the docket and determined that the comments do not require substantive changes from the draft guidance. Clarifying language was, however, added to this final guidance largely based on the public comments and to update the Agency's treatment of sponsor requests for “transfer” of certain user fee payments eligible for refund toward applicable user fee liabilities.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Assessing User Fees Under the Generic Drug User Fee Amendments of 2017.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in Form FDA 3913 (User Fee Payment Refund Request) have been approved under OMB control number 0910-0805 and the collections of information in Form FDA 3914 (User Fee Payment Transfer Request) have been approved under OMB control number 0910-0805.
Persons with access to the internet may obtain the guidance at
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before July 18, 2022.
Submit your comments to
When submitting comments or requesting information, please include the document identifier 0990-New-60D, and project title for reference, to Sherrette Funn, the Reports Clearance Officer,
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
OMB No. 0990-XXXX—Assistant Secretary for Preparedness and
The Department of Health and Human Services, HHS, Assistant Secretary for Preparedness and Response, within Office of Strategy, Policy, Planning, and Requirements is seeking approval by OMB on a new Generic clearance. HHS, is working with the White House and across the federal interagency to launch a multiyear implementation involving the identification and coordination of measurable activities across the U.S. government, SLTT (State, Local, Tribal, and Territorial) jurisdictions, and private sector partners. Cross-sectoral engagement is the underpinning of many of the interdependent implementation activities. For example, one such activity involves information collection from SLTT partners on facility, local, and state stockpiling plans to ensure coordinated plans are in place for a future public health emergency. Potential engagements include surveys, stakeholder meetings, RFI's, town hall meetings, and workshops. With each of these different mechanisms of engagement, there is a varied frequency ranging from single engagements to regularly recurring meetings.
In July 2021, the White House published the National Strategy for a Resilient Public Health Supply Chain. The strategy calls out strategic goals and recommendations for building immediate and long-term resilience through increased visibility, agility, and robustness in the public health supply chain to prepare for and mitigate future public health emergencies.
HHS is requesting a 3-year PRA clearance and will engage with SLTT, trade groups, mixed cross-sector audiences, non-governmental organizations, manufacturers, academia, healthcare providers and facilities, and local communities.
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.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, NHLBI.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the NATIONAL HEART, LUNG, AND BLOOD INSTITUTE, including consideration of personnel qualifications and performance, and the competence of individual investigators, 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.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the AIDS Research Advisory Committee, NIAID.
The meeting will be open to the public. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
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.
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.
Name of Committee: National Institute on Deafness and Other Communication Disorders Special Emphasis Panel; Chemical Senses Fellowship Review.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Eye Council.
The meeting will be held as a virtual meeting on June 17, 2022, and is open to the public as indicated below. The open session (event) will be videocast by NIH with closed captioning at:
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.
Any interested person may file written comments with the committee by forwarding the statement to the contact person listed above before the meeting or within 15 days after the meeting. 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 meetings of the National Advisory Allergy and Infectious Diseases Council.
The meeting will be open to the public. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
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.
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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following 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 a meeting of the National Advisory Council for Complementary and Integrative Health.
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.
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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following 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.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0038, Plan Approval and Records for Tank Vessels, Passenger Vessels, Cargo and Miscellaneous Vessels, Mobile Offshore Drilling Units, Nautical School Vessels and Oceanographic Research Vessels; without change.
Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before June 17, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2022-0097], and must be received by June 17, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (87 FR 9077, February 17, 2022) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
The Coast Guard uses this information to ensure that a vessel meets the applicable standards for construction, arrangement and equipment under 46 CFR Subchapters D, H, I, I-A, R and U.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0016, Welding and Hot Work Permits; Posting of Warning Signs; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before June 17, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2022-0101], and must be received by June 17, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (87 FR 7849, February 10, 2022) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0009, Oil Record Book for Ships; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before June 17, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2022-0098], and must be received by June 17, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (87 FR 9078, February 17, 2022) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
U.S. Coast Guard, Department of Homeland Security.
Notice of Federal Advisory Committee meeting.
The National Chemical Transportation Safety Advisory Committee (Committee) will meet to discuss matters relating to the safe and secure marine transportation of hazardous materials. The meetings will be open to the public via both a virtual platform and limited in-person seating on a first come first served basis.
The meeting will be held at 1525 Wilson Boulevard, Arlington, VA 22209.
Attendees at the meeting will be required to follow COVID-19 safety guidelines promulgated by Centers for Disease Control and Prevention (CDC), which may include the need to wear masks. CDC guidance on COVID protocols can be found here:
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individual listed in
Lieutenant Ethan T. Beard, Alternate Designated Federal Officer of the National Chemical Transportation Safety Advisory Committee, 2703 Martin Luther King Jr. Ave. SE, Stop 7509, Washington, DC 20593-7509, telephone 202-372-1419, fax 202-372-8382 or
Notice of this meeting is given in accordance with the
The day will be dedicated to subcommittee work:
The subcommittee will address Task Statement 21-01, Recommendations on Loading Limits of Gas Carriers and USCG Supplement to International Hazardous Zone Requirements. The task statement and other subcommittee information is available for viewing at
(1) Introduction and review subcommittee task statement.
(2) Work on assigned task mentioned above.
(3) Discuss and prepare any proposed recommendations for the full Committee. The full Committee will receive the recommendations on Day 2 of the meeting.
(4) Public comment period.
(5) Adjournment of meeting.
The agenda for the full Committee meeting is as follows:
(1) Call to order.
(2) Roll call, introduction, and swearing-in members; determination of quorum.
(3) Review of November 2, 2021, meeting minutes and status of task items.
(4) U.S. Coast Guard leadership remarks.
(5) Chairman and Designated Federal Officer's remarks.
(6) Committee will review, discuss, and formulate recommendations on the following items:
a. Task Statement 21-01: Recommendations on Loading Limits of Gas Carriers and USCG Supplement to International Hazardous Zone Requirements.
(7) Presentation of the following task statements for Committee discussion and vote:
a. Task Statement 22-01, Recommendations to Support Reductions to Emissions and Environmental Impacts Associated with Marine Transport of Chemicals, Liquefied Gases and LNG;
b. Task Statement 22-02, Recommendations on Industry Best Practices and Regulatory Updates Related to the Maritime Transportation of Lithium Batteries;
c. Task Statement 22-03, Recommendations on Testing Requirements for Anti-Flashback Burners for Vapor Control Systems.
(8) Subcommittee recommendation(s) discussion.
(9) Public comment period.
(10) Closing remarks/set next meeting date and location.
(11) Adjournment of meeting.
A copy of all meeting documentation will be available at:
Public comments or questions will be taken throughout the meetings as the Committee discusses the issues and prior to deliberations and voting. There will be a public comment period at the end of meetings. Speakers are requested to limit their comments to 2 minutes. Please note that the public comment period will end following the last call for comments. Contact the individual listed in the
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0005, Application and Permit to Handle Hazardous Materials; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before June 17, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2022-0050], and must be received by June 17, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (87 FR 7475, February 9, 2022) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of
You may submit comments to the Coast Guard and OIRA on or before June 17, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2022-0048], and must be received by June 17, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (87 FR 7197, February 8, 2022) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Federal Emergency Management Agency, Department of Homeland Security.
Committee management; notice of open federal advisory committee meeting.
The Federal Emergency Management Agency's National Advisory Council (NAC) will meet on June 7 and 8, 2022. The meeting will be open to the public through virtual means.
The NAC will meet from 10:30 a.m. to 2:00 p.m. Eastern Time (ET) on
Anyone who wishes to participate must register with FEMA in advance by providing their name, official title, organization, telephone number, and email address to the person listed in the
Public comment periods will be held on Tuesday, June 7, 2022, from 11:45 a.m. to 12:00 p.m. ET; and Wednesday, June 8, 2022, from 10:45 a.m. to 11:00 a.m. ET. All speakers must register in advance of the meeting to make remarks during the public comment period and must limit their comments to three minutes. Comments should be addressed to the NAC. Any comments unrelated to the agenda topics will not be considered. To register to make remarks during the public comment period, contact the person listed in the
The NAC is committed to ensuring all participants have equal access regardless of disability status. If you require a reasonable accommodation due to a disability to fully participate, please contact the individual listed in the
Rob Long, Designated Federal Officer, Office of the National Advisory Council, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472-3184, 202-716-4612,
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. appendix.
The NAC advises the FEMA Administrator on all aspects of emergency management. The NAC incorporates input from state, local, tribal, and territorial governments, and the private sector in the development and revision of FEMA plans and strategies. The NAC includes a cross-section of officials, emergency managers, and emergency response providers from state, local, tribal, and territorial governments, the private sector, and nongovernmental organizations.
The full agenda and any related documents for this meeting will be available by Friday, June 3, 2022, by contacting the person listed in the
Federal Emergency Management Agency, Department of Homeland Security.
30-Day notice and request for comments.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The notice seeks comments concerning FEMA's collection of demographic characteristics of those who apply for the Agency's programs or disaster assistance.
Comments must be submitted on or before June 17, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection should be made to Director, Information Management Division, 500 C Street SW, Washington, DC 20472, email address
FEMA proposes to collect demographic information from those who apply for benefits to improve its approach to ensuring compliance with its civil rights, nondiscrimination and equity requirements, and obligations as outlined in federal civil rights laws such as Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
This proposed information collection previously published in the
Certain comments question the utility and relevance of collecting demographic information from disaster survivors in the context of the equitable and efficient delivery of FEMA's disaster response.
This collection is to ensure that FEMA is equitably reaching all communities and people who require assistance. Affirmatively, upon the approval of this generic clearance, FEMA will obtain information about the demographic characteristics of those who apply for disaster assistance grants; but FEMA will continue to provide financial assistance and services only to those eligible individuals and households who, as a direct result of a major disaster or emergency, have uninsured or under-insured, necessary expenses and serious needs, and are unable to meet such expenses or needs through other means, in accordance with the law. In addition to informing survivors of their privacy rights, this collection also notifies applicants that their response or lack of response to demographic questions will neither positively nor negatively influence their eligibility for grant assistance. Each question has a `prefer not to answer' response as well in case an applicant wishes to not respond to one or more of the demographic questions.
Among other things, the collection will support FEMA's obligation to assess its policies and programs and ensure that access to and participation in the Individuals and Households Program (IHP) are accomplished in an equitable and impartial manner in accordance with Section 308(a) of the Stafford Act that requires FEMA disaster assistance, including “the distribution of supplies, the processing of applications, and other relief and assistance activities” by FEMA and recipients of FEMA financial assistance, and “be accomplished in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.” This will ultimately guide more informed and effective disaster policies that do not exclude or minimize any demographic or section of a community.
As correctly pointed out by the public in these comments, FEMA has historically held the responsibility of meeting civil rights obligations. Its nondiscrimination and equity requirements and obligations are outlined in federal civil rights laws, such as the Civil Rights Act of 1964, the Rehabilitation Act, and the Stafford Act, as well as relevant Executive Orders. The collection of this information is crucial to FEMA's aim of fulfilling our obligations and will permit its program grant offices to identify and remove barriers to application, qualification, and award, and permitting activities directly affecting disaster survivors to identify and remove barriers to equity and enhance programmatic accessibility. As correctly pointed out by the public in these comments, FEMA has historically held the responsibility of meeting civil rights obligations. Its nondiscrimination and equity requirements and obligations are outlined in federal civil rights laws, such as the Civil Rights Act of 1964, the Rehabilitation Act, and the Stafford Act, as well as relevant Executive Orders. The collection of this information is crucial to FEMA's aim of fulfilling our obligations and will permit its program grant offices to identify and remove barriers to application, qualification, and award, and permitting activities directly affecting disaster survivors to identify and remove barriers to equity and enhance programmatic accessibility.
The purpose of this notice is to notify the public that FEMA will submit the information collection abstracted below
Comments may be submitted as indicated in the
Office of Policy Development and Research, Chief Data Officer, HUD.
Correction notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment. The proposed reinstatement, with revised title and minor text revisions, of an expired, previously approved information collection for HUD Form Series HUD-903.1, HUD-903.1A, HUD-903.1B, HUD-903.1C, HUD-903.1F, HUD-903.1CAM, HUD-903.1KOR, HUD-903.1RUS, and HUD-903-1_Somali will be submitted to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act of 1995. HUD is soliciting comments from all interested parties on the proposed reinstatement of this information collection. This notice replaces the notice HUD publish on May 6, 2022 at 87 FR 27178.
Comment Due Date: June 17, 2022.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The
HUD is submitting this proposed reinstatement, with revised title and minor text revisions, of an expired, previously approved information collection to the OMB for review, as required by the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35, as amended].
HUD has revised the previous title of the HUD Form Series HUD-903.1 information collection from “Housing Discrimination Information Form” to “Report Housing Discrimination (“Form”).” This revised title emphasizes that submitting a “Report Housing Discrimination” Form to HUD is
The proposed minor text revisions to HUD Form Series HUD-903.1 will not increase the information collection burden for aggrieved persons. Both the previous and revised Forms ask an aggrieved person to provide their full name; address; phone and/or email contact information; and alternative contact information. Both Forms also ask the aggrieved person to answer five (5) preliminary questions that may establish HUD's authority (jurisdiction) to file and investigate a Fair Housing Act complaint.
The proposed minor text revisions to HUD Form Series HUD-903.1 will not increase the total annual burden hours for aggrieved persons who submit the Form to HUD via the internet. Therefore, HUD does not believe that the time for completing the online version of the Form will exceed the current 45-minute time limit for internet submissions.
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed reinstatement, with revised title and minor text revisions, of an expired, previously approved collection of information concerning alleged discriminatory housing practices under the Fair Housing Act [42 U.S.C. 3601
Any person who claims to have been injured by a discriminatory housing practice, or any person who believes that they will be injured by a discriminatory housing practice that is about to occur, may file a complaint with HUD not later than one year after the alleged discriminatory housing practice occurred or terminated. HUD has designed “Report Housing Discrimination” Form HUD-903.1 to promote consistency in the documents that, by statute, must be provided to persons against whom complaints are filed [“
Any person who claims to have been injured by a discriminatory housing practice, or any person who believes that they will be injured by a discriminatory housing practice that is about to occur, may file a complaint with HUD not later than one year after the alleged discriminatory housing practice occurs or terminates. The Form promotes consistency in the collection of information necessary to contact persons who file housing discrimination complaints with HUD. It also aids in the collection of information necessary for initial assessments of HUD's authority to investigate alleged discriminatory housing practices under the Fair Housing Act. This information may subsequently be provided to persons against whom complaints are filed [“
This Notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed information collection is necessary for the performance of the agency's functions;
(2) Whether the agency's estimate of burdens imposed by the information collection is accurate;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burdens of the information collection on aggrieved persons, including the use of appropriate automated collection techniques or other forms of information technology,
(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.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
Remaining HOPE VI Implementation grants account for most of the burden. However, HOPE VI funds are no longer being appropriated. HOPE VI Main Street funds are being funded through the Choice Neighborhoods Initiative appropriations. Currently, there are approximately 35 HOPE VI Implementation grants that remain active and must be monitored by HUD. HUD publishes competitive bi-annual NOFAs for the HOPE VI Main Street program and monitors grants that have been awarded through those NOFAs. These information collections are required in connection with the monitoring of the remaining active HOPE VI Implementation grants and the bi-annual publication on
Eligible units of local government interested in obtaining HOPE VI Main Street grants are required to submit applications to HUD, as explained in each NOFA. The information collection conducted in the applications enables HUD to conduct a comprehensive, merit-based selection process in order to identify and select the applications to receive funding. With the use of HUD-prescribed forms, the information collection provides HUD with sufficient
Applicants that are awarded HOPE VI Implementations grants are required to report on a quarterly basis on their Implementation grant revitalization activities. HOPE VI Implementation grantees do this by sending emails to the HUD grant managers. HUD reviews and evaluates the collected information and uses it as a primary tool with which to monitor the status of HOPE VI projects and programs.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(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.
HUD encourages interested parties to submit comment in response to these questions.
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(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.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
The EPIC data system is equipped to collect Physical Needs Assessment (“PNA”) data, should this data be required in the future. This data being in the system coupled with the electronic planning process would streamline grantee planning. The EPIC data system is equipped to collect information about the Energy Performance Contract (“EPC”) process, including the energy efficiency improvements. As the Department moves to shrink its energy footprint in spite of rising energy costs, clear and comprehensive data on this process will be crucial to its success. The EPIC data system is equipped to track
The follow are the specific revisions to the public burden by instrument:
1. The projected labor burden was decreased for Core Activity due to grantees becoming familiar with navigating that aspect of the EPIC system and because submissions after the first reporting cycle for a grant will be an update to the initial submitted report and will require less labor to complete. This reduced hours from the collection 3,250 hours.
2. P&E Reports are no longer required annually, reducing the number of responses and hours by 7,025.
3. RHF data will no longer be collected as that program is being phased out of CFP, reducing the number of collection hours by 25.
4. The Annual Statement/Budget total number of responses dropped by 100 due to the total number of respondents being lowered.
5. EPIC now collects copies of documents previously submitted on paper covered by CFP, Annual Plan and ACC PRA adding collection hours of 2,800.
6. EPIC has added a way for PHA to request to use additional capital resources via EPIC, increasing collection hours of 7.5.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(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.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 as amended.
Bureau of Indian Affairs, Interior.
Notice of establishment.
The Department of the Interior (DOI) is establishing the Self-Governance PROGRESS Act Negotiated Rulemaking Committee (Committee). The Committee will negotiate and advise the Secretary of the Interior (Secretary) on a proposed rule to implement the Practical Reforms and Other Goals To Reinforce the Effectiveness of Self-Governance and Self-Determination for Indian Tribes Act of 2019 (PROGRESS Act).
Ms. Vickie Hanvey, Designated Federal Officer; telephone: (918) 931-0745; email:
On October 21, 2020, the PROGRESS Act was signed into law.
On February 1, 2021, a notice in the
The purpose of the Committee is to serve as an advisory committee under the Federal Advisory Committee Act (FACA) (5 U.S.C. App.), and the Negotiated Rulemaking Act of 1996 (NRA) (5 U.S.C. 561
The Committee will be formed in full compliance with the requirements of the NRA, FACA, and the PROGRESS Act. The Secretary appoints the following seven primary Tribal representatives to the Committee.
The Secretary appoints the following seven alternate Tribal representatives:
The Secretary appoints the following six primary Federal representatives:
The Secretary appoints the following six alternate Federal representatives:
Written comments may be sent to the Designated Federal Officer listed in the
This notice is published in accordance with the NRA, FACA, and the PROGRESS Act.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Land Management, Alaska State Office (BLM) 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 BLM. 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 BLM at the address in this notice by June 17, 2022.
Robert E. King, Bureau of Land Management, 222 W 7th Avenue, #13, Anchorage, AK 99513, telephone (907) 271-5510, 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 U.S. Department of the Interior, Bureau of Land Management, Alaska State Office, Anchorage, AK. The human remains were removed from King Island, AK.
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. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the BLM with the help of the University of Alaska Museum of the North professional staff and in consultation with representatives of the King Island Native Community.
At some unknown date between the late 1940s and the late 1970s, human remains representing, at minimum, one individual were removed from an unknown location on King Island by William Laughlin. During those years, Laughlin was associated, variously, with several universities. The human remains listed in this notice were found at the University of Michigan Museum of Anthropological Archaeology in Ann Arbor. They had been deposited there due to Laughlin's collaboration on archeological work in Alaska with Ted P. Bank II of the University of Michigan. Realizing the human remains had been removed from BLM lands on King Island, in 2014, the University of Michigan transferred the human remains to the Bureau of Land Management in Anchorage, AK. In late 2018, BLM transferred the human remains to the University Museum of the North in Fairbanks, AK, for temporary housing pending repatriation. The human remains, comprising one tooth and multiple cranial fragments, belong to an adult of unknown sex. No known individual was identified. No associated funerary objects are present.
At minimum, the human remains are more than 200 years old. They are determined to be Native American based on their provenience (King Island, AK), condition, and morphology. Archeological and oral traditional information show a relationship of shared group identity between the past and present-day residents on or from King Island. The present-day residents of King Island, AK, are represented by the King Island Native Community of Nome, AK.
Officials of the U.S. Department of the Interior, Bureau of Land Management, Alaska State Office 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(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and King Island Native Community.
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 Robert E. King, Bureau of Land Management, 222 W 7th Avenue, #13, Anchorage, AK 99513, telephone (907) 271-5510, email
The U.S. Department of the Interior, Bureau of Land Management, Alaska State Office is responsible for notifying the King Island Native Community that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Little Bighorn Battlefield National Monument has completed an inventory of human remains, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Little Bighorn National Monument. If no additional requestors come forward, transfer of control of the human remains to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Little Bighorn Battlefield National Monument at the address in this notice by June 17, 2022.
Wayne Challoner, Superintendent, Little Bighorn Battlefield National Monument, P.O. Box 39, Crow Agency, MT 59022, telephone (406) 638-3201, 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 U.S. Department of the Interior, National Park Service, Little Bighorn Battlefield National Monument, Crow Agency, MT. The human remains were removed from an unknown location.
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 Superintendent, Little Bighorn Battlefield National Monument.
A detailed assessment of the human remains was made by Little Bighorn Battlefield National Monument professional staff in consultation with representatives of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Cheyenne and Arapaho Tribes, Oklahoma [
At an unknown date, human remains representing, at minimum, one individual were removed from an unknown location by unknown persons. On May 22, 1996, via the U.S. Postal Service, the human remains—a cranium and mandible—were sent anonymously from Longmont, CO to the South Dakota Indian Affairs Office in Pierre, SD. Attached to the human remains was a note stating, “Att: Little Big Horn Remains.” On May 28, 1996, the South Dakota Indian Affairs Office transferred the human remains to the South Dakota State Historical Society Archaeological Research Center (SARC), and on June 4, 1996, the human remains were transferred to Little Bighorn Battlefield National Monument. Following tribal consultation and a request for non-destructive analysis, the human remains were sent to Dr. P. Willey at California State University, Chico, CA, and subsequently were determined to be Native American. No known individual was identified. No associated funerary objects are present.
Pursuant to 43 CFR 10.10(g)(2) and 10.16, the Native American Graves Protection and Repatriation Review Committee may recommend to the Secretary of the Interior that the transfer of control of certain culturally unidentifiable human remains proceed. In February 2022, Little Bighorn Battlefield National Monument requested that the Review Committee recommend to the Secretary that the proposed transfer of control of the culturally unidentifiable Native American human remains in this notice to the Crow Tribe of Montana proceed. The Review Committee, acting pursuant to its responsibility under 25 U.S.C. 3006(c)(5), considered this request at its March 2022 meeting and recommended to the Secretary that the proposed transfer of control proceed. An April 2022 letter on behalf of the Secretary of Interior from the Designated Federal Official transmitted the Secretary's independent review and concurrence with the Review Committee that:
• Little Bighorn Battlefield National Monument consulted with every appropriate Indian Tribe or Native Hawaiian organization,
• none of The Consulted Tribes objected to the proposed transfer of control, and
• Little Bighorn Battlefield National Monument may proceed with the agreed upon transfer of control of these culturally unidentifiable human remains to the Crow Tribe of Montana.
Transfer of control is contingent on the publication of a Notice of Inventory Completion in the
Officials of the U.S. Department of the Interior, National Park Service, Little Bighorn Battlefield National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological analysis.
• 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(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian Tribe.
• Pursuant to 43 CFR 10.11(c)(1), a “tribal land” or “aboriginal land” provenience cannot be ascertained.
• Pursuant to 43 CFR 10.10(g)(2) and 10.16, the disposition of the human
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 Wayne Challoner, Superintendent, Little Bighorn Battlefield National Monument, P.O. Box 39, Crow Agency, MT 59022, telephone (406) 638-3201, email
The U.S. Department of the Interior, National Park Service, Little Bighorn Battlefield National Monument is responsible for notifying The Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Gilcrease Museum, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definition of an object of cultural patrimony. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request to the Gilcrease Museum. If no additional claimants come forward, transfer of control of the cultural item to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to the Gilcrease Museum at the address in this notice by June 17, 2022.
Laura Bryant, Gilcrease Museum, 800 S Tucker Drive, Tulsa, OK 74104, telephone (918) 596-2747, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of the Gilcrease Museum, Tulsa, OK, that meets the definition of an object of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1958, one cultural item was removed from McAlester, OK. In 1958, Thomas Gilcrease acquired the item from Louie LeFlore, great-granddaughter of Chief Greenwood LeFlore, whose family had held it since the 1830 Treaty of Dancing Rabbit Creek. In 1963-1964, Gilcrease transferred his collection to the City of Tulsa, including this item. The one object of cultural patrimony is a limestone figural pipe.
This pipe was used in a traditional ceremony as a sign of peace at one of the most defining moments in Choctaw History, the signing of the Dancing Rabbit Creek Treaty. That Treaty ushered in the removal of the Choctaw people from their aboriginal land over a 70-year period. The pipe has ongoing historical importance for the creation of The Choctaw Nation in Oklahoma. While it may have been in the stewardship of one family, it is communally owned by The Choctaw Nation of Oklahoma.
Officials of the Gilcrease Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(D), the one cultural item described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the object of cultural patrimony and The Choctaw Nation of Oklahoma.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to Laura Bryant, Gilcrease Museum, 800 S Tucker Drive, Tulsa, OK 74104, telephone (918) 596-2747, email
The Gilcrease Museum is responsible for notifying The Choctaw Nation of Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Walsh Gallery at Seton Hall University, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Walsh Gallery. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to
Laura Hapke, Collections Manager, Walsh Gallery, University Libraries, Seton Hall University, 400 South Orange Avenue, South Orange, NJ 07079, telephone (973) 275-2165, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Walsh Gallery, Seton Hall University, South Orange, NJ, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
Sometime in the 1950s, 70 cultural items were removed from Aakawaxung Munahanung (Island Protected from the Wind), an archeological site in Richmond County, NY. Staff at the Walsh Gallery believe the items were initially collected by an amateur archeologist. They were either collected by Brian Templeton or transferred to his care sometime before June of 1961. Seton Hall University purchased the unassociated funerary objects from Brian Templeton in 1961. In 2015, care of the University's archeological collection was transferred to the Walsh Gallery. The 70 unassociated funerary objects are one brass buckle, one triangular point, one side notched point, one corner notched point, one lobate point, one blank for a triangular notched point, three leaf shaped points, one shell, two jasper knives, one end scraper, one pebble chopper, one pebble hammerstone, one inner core of whelk, and 54 pottery fragments.
Officials of the Walsh Gallery, Seton Hall University have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 70 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Delaware Nation, Oklahoma; Delaware Tribe of Indians; and the Stockbridge Munsee Community, Wisconsin (hereafter referred to as “The Tribes”).
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Laura Hapke, Walsh Gallery, University Libraries, Seton Hall University, 400 South Orange Avenue, South Orange, NJ 07079, telephone (973) 275-2165, email
The Walsh Gallery, Seton Hall University is responsible for notifying The Tribes that this notice has been published.
Notice.
The Indiana State Museum and Historic Sites Corporation (ISMHS) 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 ISMHS. 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 ISMHS at the address in this notice by June 17, 2022.
Michele Greenan, Indiana State Museum and Historic Sites Corporation, 650 West Washington Street, Indianapolis, IN 46214, telephone (317) 473-0836, 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 Indiana State Museum and Historic Sites Corporation, Indianapolis, IN. The human remains were removed from Harrison County, Floyd County, and Spencer County, IN.
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. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by ISMHS professional staff in consultation with representatives of the Absentee-Shawnee Tribe of Indians of Oklahoma; Delaware Nation, Oklahoma; Delaware Tribe of Indians; Eastern Shawnee Tribe of Oklahoma; Miami Tribe of Oklahoma; Peoria Tribe of Indians of Oklahoma; and the Shawnee Tribe (hereafter referred to as “The Consulted Tribes”).
In February of 1992, following a report of looting, human remains representing, at a minimum, one individual were collected by staff of the Indiana Department of Historic Preservation and Archaeology (DHPA) from an area identified as being part of
More recent work at 12Hr12 has identified it as an occupation site whose primary occupations occurred during the late Middle Archaic and Late Archaic periods (roughly 5000-1000 B.C.). The presence of extensive shell midden deposits and artifact assemblages, which include diagnostic point types and engraved bone pin fragments, point toward heavy use of the site during this time. Based on the archeological information from 12Hr12, the human remains of this individual belong within those Archaic occupations.
Archeological and historical information shows that the present-day Shawnee and their ancestral groups have a long history in Southern Indiana and the Ohio River Valley. Archeological information evidences a strong relationship between these Shawnee ancestral groups and Mississippian communities known as Fort Ancient, while historical information from the 17th through 19th centuries indicate intense Shawnee settlement along the Ohio River Valley throughout Ohio and Indiana. Based on this information, a relationship of shared group identify can be reasonably traced between the Native American group to which these human remains belonged and the Absentee-Shawnee Tribe of Indians of Oklahoma; Eastern Shawnee Tribe of Oklahoma; and the Shawnee Tribe (hereafter referred to as “The Tribes”).
Sometime prior to March 24, 2012, human remains representing, at minimum, one individual were removed from an area along the Ohio River bordering Harrison and Floyd Counties, IN. On March 24, 2012, Indiana Conservation officers approached a man who was seen kneeling along the shoreline of the Ohio River. He had with him a kneeling pad, a trowel, and a duffle bag. Caesar's Riverboat Casino, who owned the land where this incident occurred, told the officers that it had not granted the man permission to dig on the land. Following further discussions, the man consented to a search of his apartment. There, the officers located small bags and boxes containing pieces of stone, bone, and antler, as well as a small wooden box containing a note that indicated human remains might be present among the bones. The case was assigned Incident Report # INV-12-00076. While the localities where the above materials were removed cannot be determined with exactitude, interviews with the suspect revealed that the provenience of the human remains is an area along the Ohio River around the Harrison County/Floyd County border.
On June 18, 2012, Indiana Conservation officers took the human remains to the University of Indianapolis for assessment and to determine ancestry. University of Indianapolis researchers determined that four of the bone fragments were indeed human, and that most likely they were Native American. One of the bone fragments is a distal right humerus and the other three comprise a single proximal right femur. The bones were identified as belonging to an adult, but no determination of sex or possible pathology could be made. No known individual was identified. No associated funerary objects are present. On December 12, 2013, the human remains were transferred to ISMHS.
On December 13, 1999, human remains representing, at minimum, one individual were removed from an area that is most likely part of the Kramer site (12Sp7) in Spencer County, IN. The human remains were collected on-site by staff from the Indiana Department of Historic Preservation and Archaeology (DHPA) and the Division of Forestry (DHPA accidental discovery #200012). In 2017-2018, these human remains were re-discovered during an intensive inventory of collections housed at DHPA. The label on the bag identified their provenience as 12SP7 and that they came from the northeast side of a “grassy mound.” Following their re-discovery, DHPA research staff completed an inventory of these human remains and in May of 2018, transferred them to ISMHS. Three bone fragments are present—a right humerus fragment and two clavicle fragments (right and left sides). Given the fragmentary nature of the human remains, sex and age could not be determined. No known individual was identified. No associated funerary objects are present.
Site 12SP7 is known as Kramer or Kramer Mound, a known shell-midden site—“mound” references shell deposits—that has been subject to heavy looting in the past. Archeologically, the primary occupation of Kramer Mound spanned the later part of the Middle Archaic period through the Late/Terminal Archaic periods (roughly 5000-1000 B.C.), based on the presence of dense shell-middens combined with artifact types, including bone pins and concentrations of diagnostic points. This timeframe is further corroborated by two calibrated Carbon-14 dates of 4220 B.C. and 3760 B.C. Accordingly, the human remains from 12SP7 most likely belong to these Late-Middle Archaic through Late-Terminal Archaic occupations.
Archeological and historical information shows that the present-day Shawnee and their ancestral groups have a long history in Southern Indiana and the Ohio River Valley. Archeological information evidences a strong relationship between these Shawnee ancestral groups and Mississippian communities known as Fort Ancient, while historical information from the 17th through 19th centuries indicate intense Shawnee settlement along the Ohio River Valley throughout Ohio and Indiana. Based on this information, a relationship of shared group identify can be reasonably traced between the Native American group to which these human remains belonged and The Tribes.
Officials of the Indiana State Museum and Historic Sites Corporation 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 Michele Greenan, Indiana State Museum and Historic Sites Corporation, 650 West Washington Street, Indianapolis, IN 46214, telephone (317) 473-0836, email
The Indiana State Museum and History Sites Corporation is responsible for notifying The Consulted Tribes that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission, having previously found a violation of section 337, has determined to issue a limited exclusion order (“LEO”) directed against infringing cloud-connected wood-pellet grills and components thereof imported by or on behalf of respondent GMG Products LLC (“GMG”) of Lakeside, Oregon and a cease and desist order (“CDO”) directed against GMG. The investigation is terminated.
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2310. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on January 4, 2021, based on a complaint filed on behalf of Traeger Pellet Grills LLC (“Traeger”) of Salt Lake City, Utah. 86 FR 129-30 (Jan. 4, 2021). The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cloud-connected wood-pellet grills and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 10,218,833 (“the '833 patent”) and 10,158,720 (“the '720 patent”). The Commission's notice of investigation named GMG as the sole respondent. The Office of Unfair Import Investigations is not participating in the investigation.
The Commission previously found that Traeger has satisfied the economic prong of the domestic industry requirement with respect to the '833 and '720 patents.
On September 3, 2021, the former chief administrative law judge (“CALJ”) issued an initial determination (“ID”) (Order No. 28) granting in part GMG's motion for summary determination of non-infringement as to the '833 patent and terminating that patent from the investigation.
On December 6, 2021, the former CALJ issued a final ID finding a violation of section 337 based on infringement (
On December 20, 2021, GMG petitioned for review of certain aspects of the final ID. Specifically, GMG petitioned for review of the ID's findings regarding claim construction, infringement, the technical prong of the domestic industry requirement, validity, and enforceability with respect to the '720 patent. On December 28, 2021, Traeger filed a response in opposition to GMG's petition for review.
The Commission received no submissions from the public in response to its
On March 8, 2022, the Commission determined not to review the final ID's finding of a violation of section 337 with respect to claims 1 and 2 of the '720 patent, thus adopting that finding.
On March 22, 2022, Traeger and GMG each filed a brief on remedy, the public interest, and bonding. On March 29, 2022, the parties filed their reply briefs. The Commission received no other submissions.
Having reviewed the record in this investigation, including the parties' briefing, the Commission has determined that the appropriate form of relief is an LEO prohibiting the entry of unlicensed cloud-connected wood-pellet grills and components thereof that infringe one or more of claims 1 and 2 of the '720 patent, and that are manufactured abroad by or on behalf of, or imported by or on behalf of, GMG or any of its affiliated companies, parents, subsidiaries, agents, or other related business entities, or their successors or assigns (collectively, “the covered articles”). The Commission has also determined to issue a CDO prohibiting GMG from conducting, or aiding and abetting, any of the following activities in the United States: Importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for cloud-connected wood-pellet grills and components thereof that infringe one or more of claims 1-2 of the '720 patent.
The Commission has further determined that the public interest
The Commission issues its opinion herewith setting forth its determinations on the remedy, bonding and public interest issues. The investigation is terminated.
The Commission vote for this determination took place on May 12, 2022.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in Part 210 of the Commission's Rules of Practice and Procedure, 19 CFR part 210.
By order of the Commission.
On the basis of the record
The Commission instituted these reviews on December 1, 2021 (86 FR 68283) and determined on March 7, 2022, that it would conduct expedited reviews (87 FR 21136, April 11, 2022).
The Commission made these determinations pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determinations in these reviews on May 13, 2022. The views of the Commission are contained in USITC Publication 5324 (May 2022), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Sonrai Memory Ltd. on May 11, 2022. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain laptops, desktops, mobile phones, tablets, and components thereof. The complainant names as respondents: Amazon.com, Inc. of Seattle, WA; Dell Technologies Inc. of Round Rock, TX; EMC Corporation of Round Rock, TX; Lenovo Group Ltd. of China; Lenovo (United States) Inc. of Morrisville, NC; Motorola Mobility LLC of Chicago, IL; LG Electronics Inc. of Korea; LG Electronics USA, Inc. of Englewood, Cliffs, NJ; Samsung Electronics Co., Ltd. of Korea; and Samsung Electronics America, Inc. of Ridgefield Park, NJ. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond upon respondents alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondent, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3621”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for an additional 30 days until June 17, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, Mail Stop 3.E-405A, Washington, DC 20530.
On March 25, 2020, a former Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Eric David Thomas, M.D., (hereinafter, Applicant) of Helena, Montana. OSC, at 1. The OSC proposed the denial of Applicant's DEA registration application No. W18015986C and “any other application(s) for a DEA registration” on the grounds that he “materially falsified” that application “in violation of 21 U.S.C. 824(a)(1),” and “also pursuant to 21 U.S.C. 824(a)(4) and 823(f),” alleging that his being registered “would be inconsistent with the public interest as that term is defined in 21 U.S.C. 823(f) for violations of applicable Federal Law.”
The substantive grounds for the proceeding, as more specifically alleged in the OSC, are, first, that Applicant's DEA registration application No. W18015986C “does not set forth that . . . [he] previously surrendered . . . [his registration] No. FT2321797 for cause” even though he was “aware of that fact, as evidenced by . . . [his] agreement to surrender . . . [it] by signing and dating a Form DEA-104 on or about May 20, 2015.”
The OSC notified Applicant of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option.
Applicant requested a hearing. Request for Hearing for “Eric Robert Thomas, MD,” dated March 30, 2020;
The ALJ's Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter, RD) is dated September 29, 2020. The RD notes thirty-eight stipulations agreed upon by the parties and includes them in its found facts. RD, at 91-96;
Applicant filed exceptions to the RD. [Applicant's] Exceptions to Decision of September 29, 2020 dated October 19, 2020 (hereinafter, Appl Exceptions). The Government sought, and eventually received, leave to respond to Appl Exceptions. Government's Responses to [Applicant's] Exceptions to Recommended Decision, Findings of Fact, and Conclusions of Law dated October 29, 2020 (hereinafter, Govt Exceptions).
Having considered the record in its entirety, I conclude that the Government failed to establish by clear, unequivocal, and convincing evidence that Applicant violated 21 U.S.C. 824(a)(1). I further conclude that there is uncontroverted, substantial record evidence, including Applicant's admission, that Applicant issued eleven controlled substance prescriptions when he had neither federal nor state authority to do so. I also conclude that the record evidence about whether Applicant exhibited candor in his interactions with the Agency and Agency investigators is not conclusive and, accordingly, that the record does not include substantial evidence of Applicant's OSC-alleged lack of candor.
I conclude, based on the entire record before me, that Applicant did not unequivocally accept responsibility for the egregious violations of prescribing controlled substances eleven times when he lacked federal and state authority to do so. Accordingly, based on the entire record before me, I decline to entrust Applicant with a DEA registration at this time and I deny DEA registration application No. W18015986C.
I set out the parties' stipulations of fact, adopting them as the ALJ recommended, and I make additional findings.
As already discussed, the parties agreed to thirty-eight stipulations of fact. The ALJ recommended that they be accepted as fact. I agree and I adopt as fact the parties' thirty-eight stipulations of fact, copied verbatim below. RD, at 91.
1. [Applicant] was licensed in the State of New Jersey, Medical License No. 25MA08851700.
2. [Applicant's] New Jersey medical license, License No. 25MA08851700,
3. [Applicant] entered into a final consent order in the state board case involving his New Jersey medical license, License No. 25MA08851700, that was issued, on or about, February 22, 2018. Consent Order,
4. [Applicant] previously had a Controlled Dangerous Substance (“CDS”) registration in the State of New Jersey, Registration No. DO9767000. On or about May 20, 2015, [Applicant] signed a Consent Order that temporarily suspended his New Jersey CDS registration. Consent Order of Temporary Suspension of NJ CDS Registration,
5. [Applicant] was issued a medical license, License No. MED-PHYS-LIC-49958, by the State of Montana, on or about, June 20, 2016. The License was issued under his name and the business name of Medical Associates of Montana.
6. [Applicant] was registered with DEA as a practitioner authorized to handle controlled substances in Schedules II-V under DEA COR number FT2321797 at 44 Ridge Road, North Arlington, NJ 07031.
7. On or about June 22, 2016, [Applicant] submitted an application for a DEA COR to handle controlled substances in Schedules II-V, with Application No. W16055629C, at 1001 South Main Street, Suite 49, Kalispell, MT 59901.
8. For Application No. W16055629C, [Applicant] answered “Y” or “Yes” for liability question 3. [Applicant] also provided the following information for question 3:
Incident Nature[:] THERE WAS CONCERN THAT DURING THE COURSE OF DR. THOMAS' SEEING, EXAMINING AND TREATING VARIOUS PATIENTS WITH VARIED MEDICAL PROBLEMS, THERE MAY HAVE BEEN A VERY FEW PATIENTS' MISUSE OF PRESCRIPTIONS PROVIDED FOR THEIR ALLEGED PAIN CONTROL. NONE OF THIS MISUSE WAS ANTICIPATED IN ANY WAY BY ME IN MY ADMINISTRATION OF PROVIDING PROPER HEALTH CARE TREATMENT TO MY PATIENTS.
Incident Result[:] IN CONSIDERATION OF THIS PENDING ACCUSATION, I VOLUNTARILY SUSPENDED MY DEA LICENSE 13 MONTHS AGO IN GOOD FAITH IN ORDER TO RESPECT THE ACCUSATIONS THAT HAD BEEN MADE. DESPITE MY BEST EFFORTS TO PROVIDE APPROPRIATE HEALTH CARE AND TREATMENT, THESE ACCUSATIONS BY THE NJ MEDICAL BOARD RESULTED IN THE TEMPORARY SUSPENSION OF MY MEDICAL LICENSE PENDING THE CONSIDERATION STILL TO BE MADE BY A PROPER AND MORE APPROPRIATE, YET STILL UNSCHEDULED, “PLENARY HEARING”.
9. On or about February 21, 2018, [Applicant] submitted an application for a DEA COR to handle controlled substances in Schedules II-V, with Application No. W18015986C, at 2620 Colonial Drive, Helena, MT 59602.
10. For Application No. W18015986C, [Applicant] answered “Y” or “Yes” for liability question 2. [Applicant] also provided the following information for question 2:
Incident Nature[:] THERE WAS CONCERN BY THE CONTROLLED DRUG DIVISION (CDS) THAT THERE WAS INAPPROPRIATE PRESCRIBING OF CONTROLLED SUBSTANCES BY DR. THOMAS FROM HIS MEDICAL OFFICE. OF THE 1,000 CHARTS OF [sic] DR. THOMAS HAD, SIX MEDICAL RECORDS WERE REQUESTED FOR REVIEW BY THE DEPUTY ATTORNEY GENERAL. AT THIS TIME, DR. THOMAS COMPLIED WITH ALL REQUESTS AND VOLUNTARILY SURRENDERED HIS CDS REGISTRATION PRIVILEGES WHILE THE CHART INSPECTION WAS BEING CONDUCTED.
Incident Result[:] THE NJ MED BOARD HELD A HEARING WHERE THE CHARTS OF DR THOMAS WERE INCOMPLETELY COPIED AND GIVEN TO ANOTHER DR WHO INCORRECTLY CONCLUDED THAT DR THOMAS DIND'T [sic] PROVIDE GOOD MEDICAL CARE WHILE PRESCRIBING CDS MEDS. DR THOMAS AND LAWYER CONTACTED ANOTHER MEDICAL DR—TRIPLE BOARD CERTIFIED—WHO REVIEWED THE ENTIRE CHARTS AND CONCLUDED MEDICAL CARE GIVEN BY DR THOMAS MET OR EXCEEDED STANDARD PRACTICES. A CONSENT ORDER WAS THEN AGREED UPON W/DR THOMAS DENYING ANY WRONG DOING, NO CIVIL PENALTY MADE.
11. On or about December 4, 2018, [Applicant] submitted an application for a DEA COR to handle controlled substances in Schedule V, with Application No. W18128011C, at 400 Conley Lake Road, Deer Lodge, MT 59722-8708.
12. [Applicant] has not had a DEA Registration to handle controlled substances since he surrendered COR No. FT2321797 for cause, on or about, May 20, 2015.
13. On or about June 2, 2015, [Applicant] issued to a patient with the initials T.P. a controlled substance prescription for Sonata 10 mg capsules (20 count).
14. On or about June 2, 2015, [Applicant] issued to a patient with the initials A.G. a controlled substance prescription for Sonata 10 mg capsules (30 count).
15. On or about June 2, 2015, [Applicant] issued to a patient with the initials M.M. a controlled substance prescription for Sonata 10 mg capsules (30 count).
16. On or about June 2, 2015, [Applicant] issued to a patient with the initials E.G. a controlled substance prescription for Sonata 10 mg capsules (30 count).
17. On or about June 2, 2015, [Applicant] issued to a patient with the initials R.B. a controlled substance prescription for Sonata 10 mg capsules (30 count).
18. On or about June 12, 2015, [Applicant] issued to a patient with the initials M.W. a controlled substance for Qsymia 7.5-46 mg capsules (30 count).
19. On or about June 22, 2015, [Applicant] issued to a patient with the initials J.E. a controlled substance prescription for Lomotil 2.5-0.025 mg tablets (60 count).
20. On or about July 22, 2015, [Applicant] issued to a patient with the initials M.G. a controlled substance prescription for Lomotil 2.5-0.025 mg tablets (40 count).
21. On or about July 27, 2015, [Applicant] issued to a patient with the initials DC a controlled substance prescription for Belviq 10 mg tablets (30 count).
22. On or about August 13, 2015, [Applicant] issued to a patient with the initials M.C. a controlled substance prescription for phenobarbital 64.8 mg tablets (30 count).
23. On or about August 17, 2015, [Applicant] issued to a patient with the initials H.G. a controlled substance prescription for Restoril 22.5 mg tablets (30 count).
24. Sonata is the brand name for zaleplon, a Schedule IV controlled substance that is often used to treat insomnia.
25. Qsymia contains phentermine and topiramate, and is a Schedule IV controlled substance that is often used to treat obesity.
26. Lomotil is the brand name for diphenoxylate-atropine, a Schedule V controlled substance that often is used to treat irritable bowel syndrome and diarrhea.
27. Belviq is the brand name for lorcaserin, a Schedule IV controlled substance that often is used to treat obesity.
28. Phenobarbital is a Schedule IV controlled substance that often is used to treat certain types of epilepsy.
29. Restoril is the brand name for temazepam, a Schedule IV controlled substance that often is used to treat insomnia.
30. On or about July 26, 2018, [Applicant] participated in a face-to-face interview with DEA personnel.
31. On or about September 28, 2018, [Applicant] participated in a telephonic call with DEA personnel.
32. On or about October 3, 2018, [Applicant] participated in a telephonic call with DEA personnel. [Applicant] participated in a follow-up call with DEA personnel the following day, on or about, October 4, 2018.
33. On or about March 25, 2019, [Applicant] participated in a telephonic call with DEA personnel.
34. On or about April 9, 2019, [Applicant] participated in a face-to-face interview with DEA personnel. [Applicant] provided a handwriting exemplar to DEA personnel during this interview.
35. On or about April 26, 2019, [Applicant] participated in a telephonic call with DEA personnel.
36. Government Exhibit 2 is a true and correct copy of Consent Order of Temporary Suspension of NJ CDS registration,
37. Government Exhibit 3 is a true and correct copy of Order of Temporary Licensure Suspension,
38. Government Exhibit 4 is a true and correct copy of Consent Order,
According to the Government's first witness, a Diversion Investigator (hereinafter, NJ DI) assigned to the New York Division Office whose DEA work is primarily in New Jersey, he received a telephone call from his New Jersey Enforcement Bureau investigator counterparts on May 20, 2015. Tr. 55-56, 33. NJ DI testified that his counterparts told him they were “in the process of temporarily suspending . . . [Applicant's New Jersey Controlled Dangerous Substances (hereinafter, CDS)] registration, and they asked if we could come out to obtain his DEA
NJ DI's testimony described his encounter with Applicant on May 20, 2015. NJ DI testified that, since he “was in the office when . . . [he] received the phone call from the state investigators,” he “had the time to put in the information to make . . . [a typed Form DEA-104 Voluntary Surrender of Controlled Substances Privileges form] more legible.”
NJ DI testified that the two DIs met with Applicant, “explained who we were and explained the purpose of us being there, . . . that we were there seeking a surrender of his DEA registration because . . . he no longer possessed a CDS registration . . . in good standing, and as a result, the DEA was no longer going to be valid.” Tr. 43. NJ DI testified that he read the Form DEA-104 to Applicant “so that way he knew what he was signing” because he “no longer had a CDS registration in good standing.”
Regarding NJ DI's credibility, I agree with the RD, and I find that NJ DI's testimony is fully credible. RD, at 110. I shall fully credit it. Tr. 29-76. Accordingly, I find uncontroverted, substantial, clear, unequivocal, and convincing record evidence that Applicant surrendered his DEA registration (No. FT2321797) and signed a DEA-completed Form DEA-104 on May 20, 2015.
NJ DI's testimony relates to action by the New Jersey State Board of Medical Examiners (hereinafter, NJMB) concerning Applicant's New Jersey medical license and CDS registration.
In addition to NJ DI's testimony, the Government offered the testimonies of another DI and a Group Supervisor, and successfully moved thirteen exhibits into the record.
The Government's second DI witness testified that she is assigned to DEA's office in Billings, Montana (hereinafter, MT DI) and that she is the lead investigator on DEA registration application No. W18015986C, the registration application that is the subject of the OSC.
MT DI testified that Applicant truthfully answered Liability questions 2 and 3 in the affirmative on the DEA registration application about which the OSC was issued.
By querying New Jersey's Prescription Drug Monitoring Program, MT DI testified, she identified eleven controlled substance prescriptions that Applicant issued when he had neither
MT DI testified that Applicant's interactions with her, in telephone conversations and in-person meetings, included statements that evidence Applicant's lack of candor.
MT DI also testified that Applicant did not answer her questions related to his urine drug screen practices.
Regarding MT DI's credibility, I agree with the RD, and I find that MT DI's testimony is credible. RD, at 110. I shall afford it considerable weight. Tr. 78-209.
Accordingly, I find uncontroverted, substantial, clear, unequivocal, and convincing record evidence that Applicant truthfully answered Liability questions 2 and 3 in the affirmative on DEA registration application No. W18015986C, the application about which the OSC was issued.
The Government's third witness testified that, during the times relevant to this adjudication, she was assigned to DEA's office in Salt Lake City, Utah and was a diversion Group Supervisor (hereinafter, GS). Tr. 240. She assigned MT DI to investigate Applicant's DEA registration application because that application responded affirmatively to a Liability question and “[a]ll DEA applications that have yes to a liability question must be looked at more thoroughly before approving, or disapproving, or going forward with the order to show cause process.”
The testimony of GS corroborated the testimony of MT DI concerning their interactions with Applicant and their assessments of his candor during those interactions.
Regarding the credibility of GS, I agree with the RD and I find that the testimony of GS is credible. RD, at 111. I shall afford it considerable weight. Tr. 238-314, 690-705.
The Government called Applicant to the stand and, through direct
As already discussed, Applicant testified.
In addition to the subjects already listed about which Applicant testified when called by the Government, Applicant testified about his career before medical school, his decision to study medicine and become a physician, his efforts to ensure his appropriate prescribing of controlled substances, his acceptance of responsibility, and his remedial measures, among other things. Tr. 418-59, 490-529, 608-15.
Applicant testified that he did not submit false material in registration applications he submitted to DEA.
Applicant admitted multiple times when testifying that he issued eleven controlled substance prescriptions when he did not have federal and state authority to do so.
Applicant denied submitting false documents to DEA, lying to DEA investigators, and intending to mislead DEA and DEA investigators.
As already discussed, in the final Consent Order with the NJMB, Applicant denied “any and all wrongdoing.”
Also regarding acceptance of responsibility, Applicant testified about the second to last paragraph of his email to DEA investigators on August 3, 2018, stating “if a misstep has occurred” he has “tremendous desire to correct the previous action, most scrupulously!” RX 13, at 2. Applicant testified that he “typically . . . would have closed the meeting” by stating “tell me what you'd like me to do” or “[t]ell me how we can get through this so I can receive a DEA registration.” Tr. 504-05. By way of further example, Applicant testified that he was “trying as a doctor to do . . . [his] best,” he “recognize[d] that . . . he could be liable for these mistakes,” he “was accepting and taking ownership,” and “he wanted to figure this out and improve so . . . [he] could go forward more fully as a doctor, not only with . . . [his] license, but the DEA registration.”
In sum, I find that Applicant's acceptance of responsibility ranged from his accepting responsibility for unspecified errors and mistakes and his wanting to correct any misstep that may have occurred, to being willing to do whatever it would take to avoid liability and to practice medicine with a DEA registration.
Applicant testified that he “learned greatly” and “tremendously” from his experience with the NJMB. Tr. 524. Specifically, Applicant testified that he would be “way more cognizant and tight with . . . [his] documentation and record keeping.”
Also regarding his future practice of medicine, Applicant testified, and introduced documentary evidence, about four continuing medical education courses he took.
A CAP is to be submitted “on or before the date of appearance.” 21 U.S.C. 824(c)(2)(C). There is no date on RX 11. Applicant's Supplemental Prehearing Statement, dated May 18, 2020 (hereinafter, Appl Supp Prehearing), addresses the proposed CAP, stating that Applicant “also submits a Corrective Action Plan (CAP), which is attached hereto . . . [and] outlines the previous issues with . . . [Applicant's] registration and practice in New Jersey.” Appl Supp Prehearing, at 3. The fact that Applicant's proposed CAP was attached to Applicant's Supplemental Prehearing Statement necessarily appears to mean that Applicant's proposed CAP was not timely filed.
Further, the option of submitting a CAP offers a respondent the opportunity to avoid a hearing. That opportunity had long passed for Applicant when he moved his proposed CAP into evidence.
For all of the above reasons, I agree with the ALJ's ruling not to admit RX 11 into evidence.
Regarding Applicant's credibility, I find that Applicant is the witness with the most at stake in these proceedings. For that reason, I shall consider Applicant's testimony with caution when his testimony conflicts with credible record evidence.
Applicant successfully offered, over the Government's objections, testimonial and documentary record evidence by eleven individuals.
As past Agency decisions show, my predecessors evaluate such oral testimonial and written affidavit and certification evidence based on the relevance of their contents to the matters being adjudicated.
Accordingly, I find that the content of RX 3 through RX 10 and the oral testimony of Applicant's family member and friends provide limited evidence about Applicant's prescribing of controlled substances, an issue central to my legal responsibilities in this adjudication. Further, regarding RX 3 through RX 10, prior Agency decisions show that my predecessors afforded such written evidence limited weight because of the limited ability to assess the credibility of evidence in written form.
Having read and analyzed all of the record evidence, I find uncontroverted, substantial, clear, unequivocal, and convincing record evidence that affirmative responses to a Liability question prompt a DEA investigation.
I find uncontroverted, substantial, clear, unequivocal, and convincing record evidence that Applicant signed a Consent Order that temporarily suspended his New Jersey CDS registration on May 20, 2015.
I find uncontroverted, substantial, clear, unequivocal, and convincing record evidence accurately setting out Applicant's responses to, and the narrative content of, the second and third Liability questions on DEA registration application No. W18015986C.
I find uncontroverted, substantial record evidence that Applicant admitted to issuing, and did issue, eleven controlled substance prescriptions when he had neither federal nor state authority to do so.
The record evidence about whether Applicant exhibited candor in his interactions with the Agency and Agency investigators is not conclusive. Portions of Applicant's testimony and portions of the Government witnesses' testimonies are consistent and other portions conflict. For example, Applicant testified that he did not provide false information in Application No. W18015986C.
Testimony the Government solicited from Applicant about his statements to DEA investigators challenged the substance of testimony provided by MT DI and GS about some of those statements. For example, MT DI testified that Applicant told her that he issued the eleven controlled substance prescriptions in GX 8 but that “it wasn't that big of a deal because they were lower level drugs,” and GS testified that Applicant “exclaimed,” as he was flipping through those eleven prescriptions, “That's why we're here, because of Lomotil?”
By way of further example, DEA investigators and Applicant testified about his not having all the patients for whom he prescribed controlled substances sign controlled substance agreements. According to MT DI, Applicant “didn't really have an explanation to it . . . he didn't explain why he had some do it and not all.”
The testimonies of the DEA investigators and Applicant also addressed whether Applicant's responses were “truthful and candid.” MT DI testified that Applicant did not give her a “full and complete explanation” of why he did “nothing,” and kept doing nothing, with the results of the urinalysis tests he employed, such as positive urine drug screens for illegal drugs and negative urine drug screens for controlled substances he had previously prescribed.
Given that the facts pertaining to Applicant's prescribing of controlled substances with neither federal nor state authority are uncontroverted, it is not necessary that I find any facts pertaining to, nor adjudicate, the OSC's candor allegation, and I decline to do so.
Based on the uncontroverted, substantial record evidence that Applicant admitted to issuing, and did issue, eleven controlled substance prescriptions when he had neither federal nor state authority to do so, I find that the Government presented a
Pursuant to the Controlled Substances Act (hereinafter, CSA), “[t]he Attorney General shall register practitioners . . . to dispense . . . controlled substances . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). The CSA further provides that an application for a practitioner's registration may be denied upon a determination that “the issuance of such registration . . . would be inconsistent with the public interest.”
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing . . . controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
These factors are considered in the disjunctive.
According to the regulations, “A prescription for a controlled substance may be issued only by an individual practitioner who is (1) Authorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession and (2) Either registered or exempted from registration . . . .” 21 CFR 1306.03(a). I recently reiterated what the Agency has consistently stated: The CSA and its regulations are clear that a registrant must possess the requisite authority under both federal and state law to prescribe a controlled substance lawfully.
In this matter, as already discussed, the OSC calls for my adjudication of Applicant's DEA registration application No. W18015986C based on the charge that Applicant submitted a materially false narrative response to its second Liability question. OSC, at 4-5;
Prior Agency decisions have addressed whether it is appropriate to consider a provision of 21 U.S.C. 824(a) when determining whether or not to grant a practitioner registration application. I recently agreed with the conclusions of Agency decisions over the last forty-five years that it is.
The Government has the burden of proof in this proceeding. 21 CFR 1301.44. In this matter, while I have considered all of the public interest factors, the Government's evidence in support of its
As to Factor Three, there is no evidence in the record that Applicant has a “conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.” 21 U.S.C. 823(f)(3). However, as prior Agency decisions have noted, there are a number of reasons why a person who has engaged in criminal misconduct may never have been convicted of an offense under this factor, let alone prosecuted for one.
The Government does not argue that its case includes an allegation cognizable under Factor Five. Govt Posthearing, at 31.
Regarding 21 U.S.C. 824(a)(1), I recently decided that the elements of a material falsification according to the Supreme Court's decision in
The Government argues that, although Applicant correctly responded “yes” to the second Liability question, his narrative response omitted specific reference to his DEA registration, focusing, instead, on why he thought the NJMB's conclusions about his medical practice were wrong. Govt Posthearing, at 27-31. In other words,
As already discussed, I find uncontroverted, substantial, clear, unequivocal, and convincing record evidence that Applicant answered “yes” to the second Liability question on DEA registration application No. W18015986C.
The found facts of this adjudication are unique and not likely ever to recur. Based on those facts, there are many reasons why Applicant's narrative follow-up to his “yes” response to the second Liability question did not have a “natural tendency to influence” and was not “capable of influencing” the Agency's decision regarding Applicant's DEA registration application No. W18015986C. For example, Applicant accurately responded in the affirmative to the second Liability question on DEA registration application No. W18015986C and responded with the correct “incident date” and the correct “incident location” in the narrative. Further, DEA investigators filled in a Form DEA-104, presented it to Applicant, explained it to Applicant, told Applicant why they were offering him the opportunity to sign it and surrender his DEA registration, and obtained from Applicant his signature on it and the surrender of his DEA registration No. FT2321797.
Accordingly, on the unique and unlikely ever to recur record evidence before me, I conclude that the narrative responses regarding “incident nature” and “incident result” Applicant provided for the second Liability question on his DEA registration application No. W18015986C were not “predictably capable of affecting, that is, had a natural tendency to affect, the official decision” of DEA.
At the core of the CSA is the principle that having the requisite federal and state authority is essential to the lawful issuance of a controlled substance prescription.
Applicant's eleven unlawful controlled substance prescriptions violate a core principle of the CSA and constitute egregious misconduct.
As already discussed, Applicant admitted to issuing eleven controlled substance prescriptions when had neither federal nor state authority to do so.
Where, as here, the Government has met its
Regarding his issuing eleven controlled substance prescriptions when he had neither federal nor state authority to do so, Applicant was asked “with respect to the prescriptions that you wrote, the alleged prescriptions, have you acknowledged writing after your DEA registration was surrendered? Do you accept responsibility for that?” Tr. 528. Applicant responded, “Yes. I'm
Further, in the context of his issuing controlled substance prescriptions with neither federal nor state authority, Applicant's attempt to minimize his wrongdoing by distinguishing between “narcotics” and the Schedule IV and Schedule V prescriptions he issued is troubling because the distinction is legally irrelevant. Tr. 390 (Applicant's testimony that “it doesn't seem unreasonable” for him to have been surprised that he had written “a [B]elviq or lower” when he had been thinking about “narcotics”). The law does not distinguish among controlled substances' schedules. It is unlawful to issue a prescription for any controlled substance without the requisite federal and state authority. 21 CFR 1306.03. In sum, the record evidence does not support my concluding that Applicant unequivocally accepts responsibility for issuing eleven controlled substance prescriptions when he did not have federal and state authority to do so.
Also during his testimony, Applicant's counsel asked him “with respect to the New Jersey consent order of temporary suspension” whether he “accept[s] that . . . [he] is bound by that suspension.” Tr. 528. Applicant's answer was “[y]es, absolutely. I was concerned by . . . comments [of Government counsel]. I accept responsibility; I'm an adult, and I want to do better.”
In sum, Applicant did not unequivocally accept responsibility and has not convinced me that he can be entrusted with the registration he applied for in DEA registration application No. W18015986C.
The interests of specific and general deterrence weigh in favor of denial of Applicant's DEA registration application No. W18015986C. Applicant issued eleven controlled substance prescriptions when he had neither federal nor state authority to do so, a violation at the core of the CSA. While Applicant is to be recognized for taking controlled substance-related and documentation/recordkeeping-related courses, his testimony in this proceeding has not convinced me that his future controlled substance prescribing, documentation, and recordkeeping will comply with legal requirements.
Further, given the egregious nature of Applicant's violations, including that he unlawfully wrote eleven controlled substance prescriptions for six different Schedule IV and Schedule V controlled substances, a sanction less than denial of Applicant's DEA registration application No. W18015986C would send a message to the current and prospective registrant community that compliance with the law, including compliance with core controlled-substance legal principles, is not a condition precedent to receiving and maintaining a DEA registration.
Accordingly, I shall order the sanction the Government requested, as contained in the Order below.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny DEA registration application No. W18015986C submitted by Eric David Thomas, M.D. I further hereby deny any other pending application(s) of Eric David Thomas, M.D., for registration in Montana. This Order is effective June 17, 2022.
On May 20, 2021, a former Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government) issued an Order to Show Cause (hereinafter, OSC), seeking to revoke the DEA Certificate of Registration, Control No. FH1510709, of Michael T. Harris, M.D. (hereinafter, Respondent) and deny any pending applications for renewal or modification of such registration, or for additional registrations, pursuant to 21 U.S.C. 824(a)(4). OSC, at 1. The Government alleges that Respondent's continued registration is inconsistent with the public interest, as defined in 21 U.S.C. 823(f).
A hearing was held before an Administrative Law Judge (hereinafter, ALJ) on October 12, 2021. The ALJ issued Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge (hereinafter, Recommended Decision or RD), which recommended that I revoke Respondent's registration and deny his pending application for renewal. RD, at 39. Respondent filed Exceptions to the RD on January 7, 2021, and the Government filed its Response on January 28, 2022.
The Government presented its case through the testimony of two witnesses, a DEA Diversion Investigator (hereinafter, DI), Tr. 16-58, 200-01, and Dr. L, a former colleague of Respondent, Tr. 60-80. The ALJ gave the DI and Dr. L's testimonies full weight and credit. RD, at 7, 9. I adopt her summary of their testimonies and credibility determinations.
Respondent presented his case through two witnesses, Dr. R., who medically monitored Respondent's drug rehabilitation, Tr. 80-144, and Respondent, Tr. 144-190. The ALJ gave little weight to Dr. R's testimony—finding that Dr. R was a “combative and, at times, condescending witness,” who had a vested interest in Respondent retaining his DEA registration. RD, at 13-14. I agree with the ALJ's findings and adopt her credibility determination for Dr. R's testimony.
I also agree with the ALJ's credibility findings regarding Respondent's
Respondent is a Florida physician who holds a DEA registration to handle controlled substances in Schedules II-V. Stip. 6. From November 2015 through July 2016, Respondent issued twenty-four prescriptions for controlled substances using the DEA registration number of Dr. L. Tr. 27, GX 2. Respondent admitted that he did not have authorization or permission from Dr. L to issue the prescriptions using Dr. L's DEA registration number. Tr. 27, 65-72, 149. Respondent obtained the prescriptions, some signed and some unsigned, from a lockbox at their joint practice. Tr. 26, 149, 153-54. Respondent used the prescriptions, forging Dr. L's signature when necessary, to issue controlled substance prescriptions to himself and three family members.
Dr. L first learned of Respondent's misuse of his prescription pad in August 2016. Tr. 74. Dr. L sent a letter to the Florida Board of Medicine stating that prescriptions were written under his name without his consent and confronted Respondent. Tr. 74-75.
On October 15, 2019, Respondent was indicted in the Northern District of Florida on one count of fraudulent acquisition of controlled substances in violation of 21 U.S.C. 843(a)(3) and (d)(1) and one count of unlawful use of another's DEA registration in violation of 18 U.S.C. 1028(a)(7) and (b)(3)(A). Stip. 12. As of the date of the hearing for this matter, Respondent was participating in a pretrial diversion program scheduled to end December 25, 2021. Tr. 178.
The DI twice asked Respondent to voluntarily surrender his DEA registration, once after an interview with Respondent in April of 2017 and once after Respondent's criminal indictment. Respondent declined both times. Tr. 31, 56-7.
After Respondent was confronted by Dr. L about the fraudulent prescriptions, Respondent's wife, in conjunction with Dr. L, called the Florida Department of Health who referred them directly to the Professional Resources Network (hereinafter, PRN), which has a contract with the Florida Department of Health to “monitor physicians and nurses and other licensed practitioners in different fields for impairment issues.” Tr. 83, 100, 157, 159, 186. Respondent began a rehabilitation program on August 27, 2016, which he reports included inpatient detoxification, inpatient therapy, and constant monitoring. Tr. 157-58, 162-64. According to Respondent, he was discharged pursuant to a PRN monitoring contract, under which he had a PRN social worker or “case manager” to whom he reported regularly; weekly PRN meetings for impaired professionals; a licensed psychologist to ensure compliance; mandatory Alcoholics Anonymous (AA) meetings; meetings with an addictionologist (Dr. R); marriage counseling; and random, but regular, drug testing. Tr. 169. He must also regularly check in with his case manager and his practice manager (another physician who reviews his prescriptions and submits quarterly reports to PRN). Tr. 172, 195.
Respondent's PRN contract was scheduled to terminate on December 19, 2021. Tr. 168, 197. Once the contract ended, Respondent would no longer be required to participate in therapy or be subject to drug testing and practice monitoring. Tr. 197-98. When asked if he was planning on stopping all counseling and treatment at the expiration of the contract, Respondent replied that “there are several options that we considered, and that's something I would discuss with my wife” but did definitively testify that he would return to AA meetings. Tr. 183-84
Section 304(a) of the Controlled Substances Act (hereinafter, CSA) provides that “[a] registration . . . to . . . dispense a controlled substance . . . may be suspended or revoked by the Attorney General upon a finding that the registrant . . . has committed such acts as would render [its] registration under section 823 of this title inconsistent with the public interest as determined under such section.” 21 U.S.C. 824(a). In the case of a practitioner, the CSA requires the Agency consider the following factors in determining whether Respondent's registration would be inconsistent with the public interest:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The [registrant's] experience in dispensing, or conducting research with respect to controlled substances.
(3) The [registrant's] conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
The Government has the burden of proving that the requirements for revocation of a DEA registration in 21 U.S.C. 824(a) are satisfied. 21 CFR 1301.44(e). When the Government has met its
While I have considered all of the public interest factors, the Government's case seeks the revocation of Respondent's registration based primarily on conduct most aptly considered under Public Interest Factors 2 and 4.
Respondent clearly violated both federal and state law when he issued fraudulent prescriptions using Dr. L's DEA registration number and, in some instances, with Dr. L's forged signature. First, Respondent issued prescriptions for his own personal use to feed his addiction, not for a legitimate medical use. This violates 21 U.S.C. 844(a), which provides that: “[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice.” Respondent's actions also violate Florida law, which provides, consistent with the federal law, that
Second, Respondent violated federal and state law when he used Dr. L's DEA registration number to issue fraudulent prescriptions. It “shall be unlawful for any person knowingly or intentionally . . . to use for the purpose of acquiring or obtaining a controlled substance, a registration number which is . . . issued to another person.” 21 U.S.C. 843(a)(2). Moreover, it “shall be unlawful for any person knowingly or intentionally . . . to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”
Where, as here, the Government has met its
I find, as the ALJ did, that Respondent has not unequivocally accepted responsibility for his misconduct. To begin, Respondent's testimony and overarching case strategy makes clear that he believes entering a rehabilitation program constitutes acceptance of responsibility. Tr. 175 (Q: “Did you take responsibility for your actions,” A: “Yes, I thought I had already showed that by going to rehab at that time.”). While rehabilitation is an essential pre-requisite for trusting a person with a substance use disorder with a registration, it does not address all of the misconduct here—the calculated fraud which involved a coherent strategy of deception achieved through the manipulation of multiple people and ended only because Respondent was caught.
Second, Respondent's decision to seek rehabilitation was not entirely voluntary; he did so only after he knew Dr. L had reported him to authorities. Respondent's attempt to characterize his rehabilitation efforts as voluntary further suggest that he has not truly accepted responsibility for his conduct, but is merely seeking to portray himself in the most favorable light in these proceedings.
When a registrant fails to make the threshold showing of acceptance of responsibility, the Agency need not address the registrant's remedial measures.
In addition to acceptance of responsibility, the Agency looks to the egregiousness and extent of the misconduct,
As for specific deterrence, the “Agency also looks to the nature of the crime in determining the likelihood of recidivism and the need for deterrence.”
As discussed above, to avoid sanction when grounds for revocation exist, a respondent must convince the Administrator that he can be entrusted with a registration. I find that Respondent has not met this burden.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), I hereby revoke DEA Certificate of Registration No. FH1510709 issued to Michael T. Harris, M.D. Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I further hereby deny any pending application to renew or modify this registration, as well as any other pending applications of Michael T. Harris, M.D. This Order is effective June 17, 2022.
National Archives and Records Administration (NARA).
Notice.
We have submitted a request to the Office of Management and Budget (OMB) for approval to continue to use a currently approved information collection. This information collection, OMB 3095-0037, covers requests for civilian service records from former Federal civilian employees or other authorized individuals—for information from, or copies of, documents in Official Personnel Files (OPF) or Employee Medical Files (EMF). We invite you to comment on this proposed information collection.
OMB must receive written comments on or before June 17, 2022.
Send any comments and recommendations on the proposed information collection in writing to
Tamee Fechhelm, Paperwork Reduction Act Officer, by email at
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for this information collection on March 8, 2022 (87 FR 13011) and we received no comments. We are therefore submitting the described information collection to OMB for approval.
If you have comments or suggestions, they should address one or more of the following points: (a) Whether the proposed information collection is necessary for NARA to properly perform
In this notice, we solicit comments concerning the following information collection:
National Archives and Records Administration (NARA).
Notice.
We have submitted a request to the Office of Management and Budget (OMB) for approval to continue to use a currently approved information collection, Facility Access Media (FAM) Request, NA Form 6006, used by all individuals requesting recurring access to non-public areas of NARA's facilities and IT network. We invite you to comment on this proposed information collection.
OMB must receive written comments on or before June 17, 2022.
Send any comments and recommendations on the proposed information collection in writing to
Tamee Fechhelm, Paperwork Reduction Act Officer, by email at
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for this information collection on March 8, 2022 (87 FR 13010) and we received no comments. We are therefore submitting the described information collection to OMB for approval.
If you have comments or suggestions, they should address one or more of the following points: (a) Whether the proposed information collection is necessary for NARA to properly perform its functions; (b) our estimate of the burden of the proposed information collection and its accuracy; (c) ways we could enhance the quality, utility, and clarity of the information we collect; (d) ways we could minimize the burden on respondents of collecting the information, including through information technology; and (e) whether this collection affects small businesses.
In this notice, we solicit comments concerning the following information collection:
National Archives and Records Administration (NARA).
Notice.
We have submitted a request to the Office of Management and Budget (OMB) for approval to use a new information collection. We are beginning a new recruitment program that connects veterans and Schedule A-eligible applicants with an opportunity for non-competitive employment. We propose to collect information from people who are interested in these opportunities in order to consider them for the positions and match them with possible jobs. The collection includes approval of a form, NARA Employment Interest Questionnaire, NA Form 3102. We invite you to comment on this proposed information collection.
OMB must receive written comments on or before June 17, 2022.
Send any comments and recommendations on the proposed information collection in writing to
Tamee Fechhelm, Paperwork Reduction Act Officer, by email at
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for this information collection on March 8, 2022 (87 FR 13009) and we received no comments. We are therefore submitting the described information collection to OMB for approval.
If you have comments or suggestions, they should address one or more of the following points: (a) Whether the proposed information collection is necessary for NARA to properly perform its functions; (b) our estimate of the burden of the proposed information collection and its accuracy; (c) ways we could enhance the quality, utility, and clarity of the information we collect; (d) ways we could minimize the burden on respondents of collecting the information, including through information technology; and (e) whether this collection affects small businesses.
In this notice, we solicit comments concerning the following information collection:
SPPC has developed a Resumé Repository (retained in a spreadsheet) to store resumés of qualified individuals who may meet our hiring needs. The Repository helps our agency find highly motivated veterans and Schedule A candidates who are eager to demonstrate their abilities in the workplace through excepted service positions, which could become permanent positions after trial period requirements have been met.
We collect the information for the Repository through an online form, NARA Employment Interest Questionnaire, NA Form 3102, which includes the following information for each individual: Applicant name, email address, phone number, types of positions applicant is interested in (may be multiple areas of interest), applicant's desired location(s), and minimum starting grade level applicant is willing to accept.
We enter the collected information from the questionnaire into the Repository spreadsheet, which managers and supervisors can use to sort and filter by position(s) of interest and/or duty location. We include resumés and cover letters as a link beside each candidate's entry so managers can view them and consider the candidate when looking for an employee. Managers have unlimited access to the Repository information and resumés to select qualified applicants to fill vacancies through a direct, non-competitive hire.
The Schedule A and veterans recruitment questionnaire link will be listed in our agency's information on the OPM website, in information provided by other agencies and organizations with similar programs, and on various pages of our agency's website at
Candidates must be U.S. citizens, eligible veterans, or be eligible under the Schedule A hiring authority.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
National Science Foundation.
Notice and request for comments.
Under the Paperwork Reduction Act of 1995, and as part of its continuing effort to reduce paperwork and respondent burden, the National Science Foundation (NSF) is inviting the general public or other Federal agencies to comment on this proposed continuing information collection.
Written comments on this notice must be received by July 18, 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, Suite E7465, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
The National Science Foundation (NSF) Innovation Corps (I-Corps
In FY 2017, the American Innovation and Competitiveness Act (AICA), Public Law 114-329, Sec. 601, formally authorized and directed the expansion of NSF I-Corps Program to increase the economic competitiveness of the United States, enhance partnerships between academia and industry, develop an American STEM workforce that is globally competitive, and support female entrepreneurs and individuals from historically underrepresented groups in STEM through mentorship, education, and training.
Under AICA, NSF has built and expanded the I-Corps Program through the National Innovation Network (NIN) model. NIN is a collection of NSF I-Corps Nodes and Sites that, together with NSF, implement the I-Corps program to grow and sustain the national innovation ecosystem. I-Corps Nodes are typically large, multi-institutional collaborations that deliver the NSF National I-Corps Teams training curriculum and recruit and train the National I-Corps instructors. I-Corps Sites are entrepreneurial centers located at individual colleges and universities that catalyze potential I-Corps teams within their local institutions. Together, the Nodes and Sites have served as the backbone of the NIN.
In 2020, NSF published the Program Solicitation, NSF 20-529, to formalize the launching of the NSF I-Corps Hubs Program, which further expands and strengthens the NIN. The I-Corps Hubs are designed to support inclusive, regional communities of innovators, in that teams are encouraged to recruit diverse members at all levels. In addition, the I-Corps Hubs Program also provides new pathways for teams to qualify for the participation in the National I-Corps
Under AICA, NSF is directed to collect data and information pertaining to the characteristics, outputs, and outcomes from the teams as well as individuals funded by the NSF I-Corps
Recently, NSF published a new I-Corps Hubs Solicitation, NSF 22-566, that supplants the now archived NSF 20-529. The new solicitation contains a set of modified grantee reporting requirements. In response to these modifications, NSF requests the revision of the previously cleared grantee reporting requirements under 3145-0258 to reflect the updates in NSF 22-566. NSF will modify the awards made under NSF 20-529 to comply with the new reporting requirements outlined in NSF 22-566 once this Paperwork Reduction Act request is approved by the OMB.
Under the new reporting requirements outlined in NSF 22-566, each Hub is required to provide data and
More concretely, each Hub is asked to report on the following:
The reporting requirements listed above are in addition to the data collected by the agency's annual report and final report requirements for the grantees. The information will help NSF report on NIN activities in the Biennial Report to Congress (as mandated by the AICA), and will provide managing Program Directors a means to monitor the progresses of these I-Corps Hubs. Finally, in compliance with the Evidence Act of 2019, information collected will be used to satisfy other Congressional requests, support the agency's policymaking and internal evaluation and assessment needs, and respond to inquiries from the public, NSF's external merit reviewers who serve as advisors, and NSF's Office of the Inspector General.
Information collected will include the names of the participants, their affiliated organizations, email addresses, and home states. These personal identifiable information (PII) are collected primarily to track recipients in their roles in the I-Corps Teams, and to allow NSF to perform due diligence and quality control on the data provided by the grantees. In addition, other requested information includes the participants' self-reporting of: occupation, gender, demographics, disability status, and veteran status. This information is collected primarily for Congressional reporting purposes. These PII data will be accessed only by the I-Corps Hubs, the managing I-Corps Program Directors, NSF senior management, and supporting staff conducting analyses using the data as authorized by NSF. Any public reporting of data will be in aggregate form, and any personal identifiers will be removed.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal 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
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on May 11, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on May 11, 2022, it filed with the Postal Regulatory Commission a
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”)
On March 24, 2022, pursuant to Section 19(b)(2) of the Exchange Act,
OCC is a central counterparty (“CCP”), which means it interposes itself as the buyer to every seller and seller to every buyer for financial transactions. As the CCP for the listed options markets in the U.S., as well as for certain futures, OCC is exposed to the risk that one or more of its members may fail to make a payment or to deliver securities. OCC addresses such exposures, in part, by requiring its members to provide collateral, including margin collateral. Margin is the collateral that CCPs, like OCC, collect to cover potential changes in a member's positions over a set period of time. Typically, margin is designed to cover such exposures during normal market conditions, which means that margin collateral should be sufficient to exposures at least 99 out of 100 days.
Margin requirements may fluctuate from day to day; however, CCPs seek to reduce fluctuations that could otherwise impose systemic risk. For example, if a CCP collects too little margin during relatively stable market conditions, then it would need to collect significantly more margin during stressed market conditions. Margin requirements that are strongly reactive to market movements are considered to be “procyclical.” By contrast, a CCP may collect slightly more margin during quiet times to reduce the additional strain it places on members during times of market stress.
OCC's process for setting margin requirements considers several distinct risk factors, including volatility. OCC's current models for estimating the impact of volatility on member positions have a number of limitations that may result in procyclical margin requirements. OCC is proposing to change its models to reduce the level of procyclicality in its margin requirements caused by changes in volatility. The changes OCC is proposing would also provide for offsets between products based on the same underlying asset. Based on data provided by OCC, the proposed model changes would likely increase margin requirements slightly overall, which, in turn, would reduce the additional amount of margin OCC would need to collect during periods of market stress.
The proposed changes to OCC's models are a continuation of volatility model changes that OCC has implemented over the past several years. In 2015, the Commission approved OCC's proposal to more broadly incorporate variations in implied volatility in OCC's margin methodology.
As described in the Notice of Filing,
(1) Implement a new model for incorporating variations in implied volatility within OCC's margin methodology for products based on the S&P 500 Index;
(2) implement a new model to margin futures on volatility indexes;
(3) replace OCC's model to for margining variance futures.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act
Pursuant to Section 19(b)(2)(B) of the Exchange Act,
• Section 17A(b)(3)(F) of the Exchange Act,
• Rule 17Ad-22(e)(2) under the Exchange Act,
• Rule 17Ad-22(e)(3) under the Exchange Act,
• Rule 17Ad-22(e)(4) under the Exchange Act,
• Rule 17Ad-22(e)(6) under the Exchange Act,
• Rule 17Ad-22(e)(23) under the Exchange Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Rule Change. 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 Exchange Act,
Interested persons are invited to submit written data, views, and arguments regarding whether the Proposed Rule Change should be approved or disapproved by June 8, 2022. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by June 22, 2022.
The Commission asks that commenters address the sufficiency of OCC's statements in support of the Proposed Rule Change, which are set forth in the Notice of Filing,
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-OCC-2022-001 and should be submitted on or before June 8, 2022. Rebuttal comments should be submitted by June 22, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Rule 8.601-E: IQ Winslow
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange has adopted NYSE Arca Rule 8.601-E for the purpose of permitting the listing and trading, or trading pursuant to unlisted trading privileges (“UTP”), of Active Proxy Portfolio Shares, which are securities issued by an actively managed open-end investment management company.
While funds issuing Active Proxy Portfolio Shares will be actively-managed and, to that extent, will be similar to Managed Fund Shares, Active Proxy Portfolio Shares differ from Managed Fund Shares in the following important respects. First, in contrast to Managed Fund Shares, which are actively-managed funds listed and traded under NYSE Arca Rule 8.600-E
The Commission has previously approved
The Shares of the Funds will be issued by the IndexIQ Active ETF Trust (the “Trust”), which is organized as a statutory trust under the laws of the state of Delaware and registered with the Commission as an open-end management investment company.
Commentary .04 to NYSE Arca Rule 8.601-E provides that, if the investment adviser to the Investment Company issuing Active Proxy Portfolio Shares is registered as a broker-dealer or is affiliated with a broker-dealer, such investment adviser will erect and maintain a “fire wall” between the investment adviser and personnel of the broker-dealer or broker-dealer affiliate, as applicable, with respect to access to information concerning the composition and/or changes to such Investment Company's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable. Any person related to the investment adviser or Investment Company who makes decisions pertaining to the Investment Company's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or has access to non-public information regarding the Investment Company's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or changes thereto must be subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding the Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or changes thereto. Commentary .04 is similar to Commentary .03(a)(i) and (iii) to NYSE Arca Rule 5.2-E(j)(3); however, Commentary .04, in connection with the establishment of a “fire wall” between the investment adviser and the broker-dealer, reflects the applicable open-end fund's portfolio, not an underlying benchmark index, as is the case with index-based funds.
In addition, Commentary .05 to Rule 8.601-E provides that any person or entity, including a custodian, Reporting Authority, distributor, or administrator, who has access to non-public information regarding the Investment Company's Actual Portfolio, Proxy Portfolio, or Custom Basket, as applicable, or changes thereto, must be subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding the applicable Investment Company Actual Portfolio, Proxy Portfolio, or Custom Basket, as applicable, or changes thereto. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity will erect and maintain a “fire wall” between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to such Investment Company Actual Portfolio, Proxy Portfolio, or Custom Basket, as applicable.
The Advisor and Sub-Advisor are not registered as broker-dealers but are affiliated with broker-dealers. The Advisor and Sub-Advisor have implemented and will maintain a “fire wall” with respect to such broker-dealer affiliates regarding access to information concerning the composition of and/or changes to each Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable.
In the event (a) the Advisor or Sub-Advisor becomes registered as a broker-dealer or becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer, or becomes affiliated with a broker-dealer, it will implement and maintain a “fire wall” with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to each Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding each Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or changes thereto. Any person related to the Advisor, Sub-Advisor, or the Funds who makes decisions pertaining to a Fund's Actual Portfolio, Proxy Portfolio, or Custom Basket, as applicable, or has access to non-public information regarding a Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or changes thereto are subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable or changes thereto.
In addition, any person or entity, including any service provider for the Funds, who has access to non-public information regarding a Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or changes thereto, will be subject to procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable, or changes thereto. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity has erected and will maintain a “fire wall” between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to a Fund's Actual Portfolio, Proxy Portfolio, and/or Custom Basket, as applicable.
According to the Registration Statement, the Advisor will identify a Proxy Portfolio for each Fund, which is designed to recreate the daily performance of each Fund's Actual Portfolio through a factor model analysis of the Fund's Actual Portfolio and will only include securities and investments in which a Fund may invest. However, while the Proxy Portfolio and the Actual Portfolio will likely hold some or many of the same securities, the Proxy Portfolio and a Fund's Actual Portfolio may not include identical securities. The composition of each Fund's Proxy Portfolio will be published on the Funds' website (
At the end of each trading day, each Fund will calculate the percentage weight overlap between its Proxy Portfolio and Actual Portfolio (the “Proxy Overlap”) and the standard deviation over the past three months of the daily proxy spread (
The Fund's holdings will conform to the permissible investments as set forth in the Application and Exemptive Order, and the holdings will be consistent with all requirements in the Application and Exemptive Order.
According to the Registration Statement, the Fund's investment objective is long-term growth of capital. The Fund will, under normal circumstances, invest at least 80% of its assets in large capitalization companies.
The Fund's holdings will conform to the permissible investments as set forth in the Application and Exemptive Order, and the holdings will be consistent with all requirements in the Application and Exemptive Order.
According to the Registration Statement, the Fund's investment objective is long-term capital growth. The Fund will, under normal circumstances, invest at least 80% of its assets in large capitalization companies.
The Shares of the Funds will conform to the initial and continued listing criteria under Rule 8.601-E. The Funds' holdings will be limited to and consistent with permissible holdings as described in the Application and Exemptive Order and all requirements in the Application and Exemptive Order.
The Funds' investments, including derivatives, will be consistent with their investment objectives and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, each Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
According to the Registration Statement, the Trust will issue and sell Shares of the Funds only in specified minimum size “Creation Units” on a continuous basis on any Business Day through the Distributor at their NAV next determined after receipt of an order in proper form. The NAV of each Fund's Shares will be calculated each Business Day as of the close of regular trading on the Exchange, ordinarily 4:00 p.m. E.T. A Creation Unit will consist of at least 10,000 Shares.
According to the Registration Statement, Shares of the Funds will be purchased and redeemed in Creation Units. Creation Units will typically be purchased in-kind through the deposit of a designated portfolio of securities constituting a representation of the Fund's portfolio (the “Deposit Securities”) together with the deposit of a specified cash payment (the “Cash Component”) (collectively, the “Fund Deposit”). The Cash Component serves to compensate for any differences between the NAV per Creation Unit and the “Deposit Amount,” which is an amount equal to the market value of the Deposit Securities. In addition, the Trust may permit or require the substitution of an amount of cash (the “cash in lieu” amount) to be added to the Cash Component to replace any Deposit Security. The names and quantities of the instruments that constitute the Deposit Securities will be the same as a Fund's Proxy Portfolio, except to the extent purchases and redemptions are made entirely or in part on a cash basis. Creation Units will typically be redeemed in exchange for “Fund Securities” (which may not be identical to the Deposit Securities) and a “Cash Redemption Amount,” which represents the difference between the NAV of the Shares being redeemed and the value of the Fund Securities.
Creation Units of the Funds may be purchased and/or redeemed entirely or partially for cash in the Advisor's or Sub-Advisor's discretion. When full or partial cash purchases or redemptions of Creation Units are available or specified for the Funds, they will be effected in essentially the same manner as in-kind purchases or redemptions thereof. The Funds may determine, upon receiving a purchase or redemption order from an Authorized Participant,
The identity and number of shares of the Deposit Securities required for a Fund Deposit may change from time to time. Each Business Day, prior to the opening of business on the Exchange, the Custodian will make available, through the National Securities Clearing Corporation, the names and quantities of each Deposit Security to be included in the Fund Deposit, as well as the estimated Cash Component. The published Fund Deposit will apply until such time as the next-announced composition of the Deposit Securities is made available, and there will be no intra-day changes except to correct errors in the published Fund Deposit. The Fund Deposit will be published each Business Day regardless of whether a Fund decides to issue or redeem Creation Units entirely or in part on a cash basis. The identity of the Fund Securities that will be applicable to redemption requests received in proper form on a Business Day will also be made available prior to the opening of business on the Exchange on each Business Day.
All orders to purchase or redeem Creation Units must be placed with the Distributor by or through an Authorized Participant. Orders to purchase or redeem Creation Units will be accepted until the “Order Time,” generally 3:00 p.m. E.T. The date on which an order to purchase or redeem Creation Units is placed is referred to as the “Transmittal Date.” All Creation Unit orders must be received by the Distributor no later than the Order Time in order to receive the NAV determined on the Transmittal Date. When the Exchange closes earlier than normal, a Fund may require orders for Creation Units to be placed earlier in the Business Day.
The Funds' website (
(i) Ticker symbol;
(ii) CUSIP or other identifier;
(iii) Description of holding;
(iv) Quantity of each security or other asset held; and
(v) Percentage weighting of the holding in the portfolio.
The identity and quantity of investments in the Proxy Portfolio for each Fund will be publicly available on the Funds' website before the commencement of trading in Shares on each Business Day. The website will also include information relating to the Proxy Overlap and Tracking Error for each Fund, as discussed above. With respect to each Custom Basket utilized by the Funds, each Business Day, before the opening of trading in the Core Trading Session (as defined in NYSE Arca Rule 7.34-E (a)), the Funds' website will also include the composition of any Custom Basket transacted on the previous business day, except a Custom Basket that differs from the applicable Proxy Portfolio only with respect to cash.
Typical mutual fund-style annual, semi-annual and quarterly disclosures contained in the Funds' Commission filings will be provided on the Funds' website on a current basis.
Investors can also obtain the Funds' SAI, Shareholder Reports, Form N-CSR, N-PORT, and Form N-CEN. The prospectus, SAI, and Shareholder Reports are available free upon request, and those documents and the Form N-CSR, N-PORT, and Form N-CEN may be viewed on-screen or downloaded from the Commission's website. The Exchange also notes that pursuant to the Application, the Funds must comply with Regulation Fair Disclosure, which prohibits selective disclosure of any material non-public information.
Information regarding the market price of Shares and trading volume in Shares, will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. The previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers.
Quotation and last sale information for the Shares and U.S. exchange-traded instruments (excluding futures contracts) will be available via the Consolidated Tape Association (“CTA”) high-speed line, from the exchanges on which such securities trade, or through major market data vendors or subscription services. Quotation and last sale information for futures contracts will be available from the exchanges on which they trade. Intraday price information for all exchange-traded instruments, which include all eligible instruments except cash and cash equivalents, will be available from the exchanges on which they trade, or through major market data vendors or subscription services. Intraday price information for cash equivalents is available through major market data vendors, subscription services and/or pricing services.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of a Fund.
Specifically, Rule 8.601-E(d)(2)(D) provides that the Exchange may consider all relevant factors in exercising its discretion to halt trading in a series of Active Proxy Portfolio Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the series of Active Proxy Portfolio Shares inadvisable. These may include: (a) The extent to which trading is not occurring in the securities and/or the financial instruments composing the Proxy Portfolio and/or Actual Portfolio; or (b) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. If the Exchange becomes aware that the NAV, Proxy Portfolio, or Actual Portfolio with respect to a series of Active Proxy Portfolio Shares is not disseminated to all market participants at the same time, the Exchange shall halt trading in such series until such time as the NAV, Proxy Portfolio, or Actual Portfolio is available to all market participants at the same time.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace in all trading sessions in accordance with NYSE Arca Rule 7.34-E(a). As provided in NYSE Arca Rule 7.6-E, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Rule 8.601-E. The Exchange has appropriate rules to facilitate trading in the Shares during all trading sessions.
A minimum of 100,000 Shares for each Fund will be outstanding at the commencement of trading on the Exchange. In addition, pursuant to Rule 8.601-E(d)(1)(B), the Exchange, prior to commencement of trading in the Shares, will obtain a representation from the Trust that (i) the NAV per Share of each Fund will be calculated daily, (ii) the NAV, Proxy Portfolio, and the Actual Portfolio for each Fund will be made publicly available to all market participants at the same time, and (iii) the Trust and any person acting on behalf of the Trust will comply with Regulation Fair Disclosure under the Act, including with respect to any Custom Basket.
With respect to Active Proxy Portfolio Shares, all of the Exchange member obligations relating to product description and prospectus delivery requirements will continue to apply in accordance with Exchange rules and federal securities laws, and the Exchange and the Financial Industry Regulatory Authority, Inc. (“FINRA”) will continue to monitor Exchange members for compliance with such requirements.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and underlying exchange-traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such securities and underlying exchange-traded instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in such securities and underlying exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
The Advisor will make available daily to FINRA and the Exchange the Actual Portfolio of each Fund, upon request, in order to facilitate the performance of the surveillances referred to above.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Commentary .03 to NYSE Arca Rule 8.601-E provides that the Exchange will implement and maintain written surveillance procedures for Active Proxy Portfolio Shares. As part of these surveillance procedures, the Investment Company's investment adviser will, upon request by the Exchange or FINRA, on behalf of the Exchange, make available to the Exchange or FINRA the daily Actual Portfolio holdings of each series of Active Proxy Portfolio Shares. The Exchange believes that the ability to access the information on an as needed basis will provide it with sufficient information to perform the necessary regulatory functions associated with listing and trading series of Active Proxy Portfolio Shares on the Exchange, including the ability to monitor compliance with the initial and continued listing requirements as well as the ability to surveil for manipulation of Active Proxy Portfolio Shares.
The Exchange will utilize its existing procedures to monitor issuer compliance with the requirements of Rule 8.601-E. For example, the Exchange will continue to use intraday alerts that will notify Exchange personnel of trading activity throughout the day that may indicate that unusual conditions or circumstances are present that could be detrimental to the maintenance of a fair and orderly market. The Exchange will require from the issuer of a series of Active Proxy Portfolio Shares, upon initial listing and periodically thereafter, a representation that it is in compliance with Rule 8.601-E. The Exchange notes that Commentary .01 to Rule 8.601-E requires an issuer of Active Proxy Portfolio Shares to notify the Exchange of any failure to comply with the continued listing requirements of Rule 8.601-E. In addition, the Exchange will require issuers to represent that they will notify the Exchange of any failure to comply with the terms of applicable exemptive and no-action relief. As part of its surveillance procedures, the Exchange will rely on the foregoing procedures to become aware of any non-compliance with the requirements of Rule 8.601-E.
With respect to the Funds, all statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings, or (c) the applicability of Exchange listing rules specified in this rule filing shall constitute continued listing requirements for listing the Shares on the Exchange. The Exchange will obtain a representation from the Trust, prior to commencement of trading in the Shares of the Funds, that it will advise the Exchange of any failure by the Funds to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Rule 5.5-E(m).
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
With respect to the proposed listing and trading of Shares of the Funds, the Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Rule 8.601-E.
The Funds' holdings will conform to the permissible investments as set forth in the Application and Exemptive Order, and the holdings will be consistent with all requirements in the Application and Exemptive Order.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and underlying exchange-traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares and underlying exchange-traded instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and underlying exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. Any foreign common stocks held by the Funds will be traded on an exchange that is a member of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
The daily dissemination of the identity and quantity of Proxy Portfolio component investments, together with the right of Authorized Participants to create and redeem each day at the NAV, will be sufficient for market participants to value and trade Shares in a manner that will not lead to significant deviations between the Shares' Closing Price or Bid/Ask Price and NAV.
The Funds' investments, including derivatives, will be consistent with its investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, the Funds' investments will not be used to seek performance that is the multiple or inverse multiple (
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the Trust that the NAV per Share of each Fund will be calculated daily and that the NAV, Proxy Portfolio, and Actual Portfolio for each Fund will be made available to all market participants at the same time. Investors can obtain the Funds' SAI, shareholder reports, and its Form N-CSR, Form N-PORT, and Form N-CEN. The Funds' SAI and shareholder reports will be available free upon request from the Funds, and those documents and the Form N-CSR, Form N-PORT, and Form N-CEN may be viewed on-screen or downloaded from the Commission's website.
Commentary .03 to NYSE Arca Rule 8.601-E provides that the Exchange will implement and maintain written surveillance procedures for Active Proxy Portfolio Shares. As part of these surveillance procedures, the Investment Company's investment adviser will, upon request by the Exchange or FINRA, on behalf of the Exchange, make available to the Exchange or FINRA the daily portfolio holdings of each series of Active Proxy Portfolio Shares. The Exchange believes that the ability to access the information on an as needed basis will provide it with sufficient information to perform the necessary regulatory functions associated with listing and trading series of Active Proxy Portfolio Shares on the Exchange, including the ability to monitor compliance with the initial and continued listing requirements as well as the ability to surveil for manipulation of Active Proxy Portfolio Shares. With respect to the Funds, the Advisor will make available daily to FINRA and the Exchange the portfolio holdings of each Fund upon request in order to facilitate the performance of the surveillances referred to above.
The Exchange will utilize its existing procedures to monitor compliance with the requirements of Rule 8.601-E. For example, the Exchange will continue to use intraday alerts that will notify Exchange personnel of trading activity throughout the day that may indicate that unusual conditions or circumstances are present that could be detrimental to the maintenance of a fair and orderly market. The Exchange will require from the Trust, upon initial listing and periodically thereafter, a representation that it is in compliance with Rule 8.601-E. The Exchange notes that Commentary .01 to Rule 8.601-E requires the issuer of Shares to notify the Exchange of any failure to comply with the continued listing requirements of Rule 8.601-E. In addition, the Exchange will require the issuer to represent that it will notify the Exchange of any failure to comply with the terms of applicable exemptive and no-action relief. The Exchange will rely on the foregoing procedures to become aware of any non-compliance with the requirements of Rule 8.601-E.
In addition, with respect to the Funds, a large amount of information will be publicly available regarding the Funds and the Shares, thereby promoting market transparency.
Quotation and last sale information for the Shares and U.S. exchange-traded instruments (excluding futures contracts) will be available via the CTA high-speed line, from the exchanges on which such securities trade, or through major market data vendors or subscription services. Quotation and last sale information for futures contracts will be available from the exchanges on which they trade. Intraday price information for all exchange-traded instruments, which include all eligible instruments except cash and cash equivalents, will be available from the exchanges on which they trade, or through major market data vendors or subscription services. Intraday price information for cash equivalents is available through major market data vendors, subscription services and/or pricing services.
The website for the Funds will include a form of the prospectus that may be downloaded, and additional data relating to NAV and other applicable quantitative information, updated on a daily basis. Trading in Shares of the Funds will be halted if the circuit breaker parameters in NYSE Arca Rule 7.12-E have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Trading in the Shares will be subject to NYSE Arca Rule 8.601-E(d)(2)(D), which sets forth circumstances under which Shares of a Fund will be halted. In addition, as noted above, investors will have ready access to the Proxy Portfolio and quotation and last sale information for the Shares. The identity and quantity of investments in the Proxy Portfolio will be publicly available on the Funds' website before the commencement of trading in Shares on each Business Day. The Shares will conform to the initial and continued listing criteria under Rule 8.601-E.
The Funds' holdings will conform to the permissible investments as set forth in the Application and Exemptive Order, and the holdings will be consistent with all requirements in the Application and Exemptive Order.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. The Exchange will obtain a representation from the Advisor, prior to commencement of trading in the Shares of the Funds, that it will advise the Exchange of any failure by the Funds to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Funds are not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Rule 5.5-E(m).
As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed rule change would permit listing and trading of additional actively-managed ETFs that have characteristics different from existing actively-managed and index ETFs and would introduce additional competition among various ETF products to the benefit of investors.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the following sections within Options 5, Order Protection and Locked and Crossed Markets: Section 2, Order Protection; Section 3, Locked and Crossed Markets; and Section 4, Order Routing to Other Exchanges.
Additionally, the Exchange proposes to make corresponding amendments to the following sections within Options 3, Options Trading Rules: Section 5, Entry and Display of Single-Leg Orders; Section 7, Types of Orders and Order and Quote Protocols; Section 9, Trading Halts; Section 10, Priority of Quotes and Orders; and Section 11, Auction Mechanisms. Also, amendments are proposed to the following sections within Options 7, Pricing Schedule: Section 1, General Provisions; Section 3, Regular Order Fees and Rebates; and Section 6, Other Options Fees and Rebates.
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.
In connection with a technology migration to an enhanced Nasdaq, Inc. (“Nasdaq”) functionality which results in higher performance, scalability, and more robust architecture, the Exchange intends to adopt certain trading functionality currently utilized at Nasdaq affiliate exchanges. Specifically, the Exchange proposes to conform the routing functionality available on ISE to that of Nasdaq BX, Inc.
Today, ISE Options 5 describes how ISE routes orders in options via Nasdaq Execution Services, LLC (“NES”)
Pursuant to Supplementary Material .02 to Options 5, Section 2, ISE permits certain orders to first be exposed at the NBBO to all Members for execution at the National Best Bid or Offer (“NBBO”) before the order would be routed to another market for execution (“flash functionality”). Currently, with respect to flash functionality, when an incoming order is priced at or through the Away Best Bid or Offer (“ABBO”), when the ABBO is better than the Exchange Best Bid or Offer (“BBO”), such order is exposed at the current NBBO to all Exchange Members for a period of time established by the Exchange not to exceed one (1) second. During the exposure period, Exchange Members may enter responses up to the size of the order being exposed in the regular trading increment applicable to the option.
Today, Non-Customer orders
Today, Sweep Orders
The Exchange proposes to amend ISE's order routing functionality to conform to that of BX Options 5, Section 4. As part of the technology migration, Nasdaq seeks to conform certain trading functionality to functionality currently available on other Nasdaq affiliated options markets to create a similar routing experience for market participants across the Nasdaq options markets. Similar to BX, ISE would continue to route orders to away markets via NES. Similar to BX, ISE would offer the following order types for routing: DNR Order, FIND Order and SRCH Order. Each order type for routing will be explained below.
ISE would no longer offer flash functionality because the proposed routing functionality, similar to BX, would permit an order to be exposed for a period of time that would allow other Members to trade with the order prior to the order routing to an away market. ISE proposes to remove the rule text related to flash functionality within Supplementary Material .02 to Options 5, Section 2.
Sweep Orders were adopted on ISE in 2014, to supplement ISE's away market routing capabilities.
With the new routing process, a Route Timer would begin for each order that is subject to routing on the Exchange. While Members may not opt out of the Route Timer, as is the case today, the proposed routing process would create a uniform streamlined process for routing all orders (FIND and SRCH) where a market participant has elected to have an order routed; Member may continue to elect to not have their orders routed. The new routing process does not distinguish as between Public Customer orders and Non-Customer orders, rather all orders would be processed in the same manner. Further, the proposed routing process would serve to further harmonize routing across Nasdaq affiliated markets.
The Exchange also proposes to remove Supplementary Material .04 to Options 5, Section 2, which sets forth routing procedures for Non-Customer orders that opt out of being processed under the flash functionality. The Exchange has proposed to replace its current away routing regime with the proposed FIND and SRCH order routing types. The processing of Sweep Orders and the routing procedures under Supplementary Material .04 to Options 5, Section 2 were established as alternative routing procedures to the flash functionality and because the Exchange proposes to eliminate the flash order functionality, these routing procedures are no longer needed under the proposed routing procedures.
Finally, the rule text within Supplementary Material .06 to Options 5, Section 2,
The Exchange proposes to remove the Supplementary Material to Options 5, Section 3
The Exchange also proposes to make certain conforming amendments within Options 3. First, the Exchange proposes to remove rule text within Options 3, Section 5(b)(1) which relates to flash functionality. Options 3, Section 5(b)(1) provides, “Orders that are not automatically executed will be handled as provided in Supplementary Material .02 to Options 5, Section 2; provided that Members may specify that a Non-Customer order should instead be accepted and immediately canceled automatically by the System at the time of receipt.” This rule text would no longer be necessary as the flash functionality is being eliminated.
The Exchange also proposes to renumber Options 3, Section 5(b)(2) as Options 3, Section 5(b)(1).
The Exchange proposes to amend Options 3, Section 9, Trading Halts, at subparagraph (d)(2). Among other things, the trading halt rule describes the processing of Market Orders exposed at the NBBO pursuant to Supplementary Material. 02 to Options 5, Section 2 after a trading halt. This rule text is no longer necessary with the elimination of flash functionality.
The Exchange also proposes to amend Options 3, Section 10(a)(ii)
Finally, the Exchange proposes to amend Options 7, Pricing Schedule, to remove all references to pricing related to the flash functionality. This would include the description of a Flash Order
The Exchange proposes to re-title Options 5, Section 4 as “Order Routing” similar to BX Options 5, Section 4. Proposed new Options 5, Section 4(a) defines various terms similar to BX such as “exposure” and “exposing”, except for terms specific to ISE such as utilizing “Member” instead of “Participant” and not capitalizing the term “Order Book”.
As noted above, the Exchange proposes to offer 2 new routing strategies, FIND and SRCH, as well as an option to “Do Not Route” or “DNR.” Additionally, the Exchange proposes to amend Options 3, Section 7 to add a new Supplementary Material .04 that provides, “Routing Strategies. Orders may be entered on the Exchange with a routing strategy of FIND or SRCH, or, in the alternative, an order may be marked Do-Not-Route (“DNR”) as provided in Options 5, Section 4 through FIX only.” The addition of this sentence will make clear which routing strategies may be utilized when submitting an order type and it will provide a citation to the routing rule for ease of reference. Routing options may be combined with all available order types and times-in-force, with the exception of order types
With respect to order entry protocols, the Exchange notes that FIX
Proposed Options 5, Section 4(a) provides that the System
The System will initiate a Route Timer for each FIND or SRCH order it receives that locks/crosses an away market price. An order will not route to an away market before the conclusion of the Route Timer which shall not exceed one second and shall begin at the time orders are accepted into the System. At the conclusion of each Route Timer, the System will consider whether an order can be routed. While the Route Timer is running, each order will be exposed
With respect to priority when routing as proposed within Options 5, Section 4(a)(i), orders sent to other markets do not retain time priority with respect to other orders in the System and the System shall continue to execute other orders while routed orders are away at another market center. Once routed by the System, an order becomes subject to the rules and procedures of the destination market including,
The Exchange proposes to relocate current Options 5, Section 4(f) into proposed Options 5, Section 4(a)(ii). This is identical to rule text within BX Options 5, Section 4(a)(ii).
The Exchange proposes to remove the following sentence within current Options 5, Section 4, “The Exchange may automatically route ISOs to other exchanges under certain circumstances, including pursuant to Supplementary Material .02 to Options 5, Section 2 (“Routing Services”). In connection with such services, the following shall apply:.” This sentence is no longer necessary and is being replaced by proposed Options 5, Section 4(a).
The Exchange proposes to retain the current provisions regarding NES within current Options 5, Section 4(a)-(e) and re-letter those paragraphs (A)-(E) to correspond with lettering within BX Options 5, Section 4 which contains similar rule text. No substantive amendments are proposed to those paragraphs.
The Exchange also proposes to update a citation within new Options 5, Section 4(a)(ii)(B) from Options 3, Section 7(m), which is being reserved, to proposed Options 5, Section 4(a)(iii)(A). Finally, the Exchange proposes to conform a citation to subparagraph (d) to “D” within new Options 5, Section 4(a)(ii)(E).
The Exchange proposes to add the new routing order types within proposed Options 5, Section 4(iii). The Exchange proposes to state, “The following order types are available:”. Of note, a routing option may be combined with all available order types and times-in-force noted within Options 3, Section 7, with the exception of order types and times-in-force whose terms are inconsistent with the terms of a particular routing option.
The proposed first routing option is a DNR Order. The proposed rule text is substantively the same as BX Options 5, Section 4(iii)(A). The Exchange proposes to describe a DNR Order within proposed Options 5, Section 4(iii)(A). A DNR Order will never be routed outside of the Exchange regardless of the prices displayed by away markets. In order to avoid trading through, a DNR Order may execute on the Exchange at a price equal to or better than, but not inferior to, the best away market price. If an away market is at a better price, the DNR Order will remain in the Exchange's order book and would display re-priced. Specifically, the Exchange would re-price the DNR Order
Any incoming order interacting with a DNR Order that is resting on the Exchange's order book would execute at the ABBO price, unless the ABBO is improved to a price which crosses the DNR Order's already displayed price. In the case where the ABBO crosses the DNR Order's price, the incoming order will execute at the previous ABBO price as the away market crossed a displayed price. Away markets have similar obligations not to trade through ISE's market. In the case where the ABBO is improved to a price which locks the DNR Order's displayed price, the incoming order will execute at the DNR Order's displayed price. Should the best away market move to an inferior price level, the DNR Order will automatically re-price from its one MPV inferior to the original ABBO and display one MPV away from the new ABBO or its original limit price, and expose such orders at the new ABBO. Once an order is booked to the order book at its original limit price, it will remain at that price until executed or cancelled. Thereafter, should the best away market improve its price such that it locks or crosses the DNR Order limit price on the order book, the Exchange will execute the resulting incoming order that is routed from the away market that locked or crossed the DNR Order limit price. By way of example, consider the following sequence of events in the System for a DNR Order:
Members may also elect to route their orders. The Exchange proposes to offer market participants two choices for routing options orders: FIND and SRCH. At a high level, a FIND Order will only attempt to route once and then post to the order book; it will not be eligible for routing until the next time the option series is subject to a new Opening Process.
The Exchange proposes to adopt a new routing option at Options 5, Section 4(a)(iii)(B) for FIND Orders. The routing process for a FIND Order is the same as BX Options 5, Section 4(a)(iii)(B). As noted above, a FIND Order is an order that is: (i) Routable at the conclusion of an Opening Process; and (ii) routable upon receipt during regular trading, after an option series is open. Each order marked as “FIND” that is submitted after an Opening Process would initiate a Route Timer and route in the order in which its Route Timer ends. FIND Orders that are not marketable with the ABBO upon receipt will be treated as DNR for the remainder of the trading day, and will not be subject to routing even in the event that there is a new Opening Process after a trading halt. At the end of an Opening Process, any FIND Order that is priced through the Opening Price, which is defined within ISE Options 3, Section 8(a)(3), will be cancelled, and any FIND Order that is at or inferior to the Opening Price will execute or book pursuant to ISE Opening Process at Options 3, Section 8(j). The Opening Process is described in greater detail within Options 3, Section 8.
With respect to FIND Orders, Options 5, Section 4(a)(iii)(B)(2) provides that generally, a FIND Order will be included in the displayed BBO at its limit price, unless the FIND Order locks or crosses the ABBO, in which case it will be entered into the order book at the ABBO price and displayed at one MPV inferior to the ABBO. If there exists a locked ABBO when the FIND Order is entered onto the order book, the FIND Order will be entered into the order book at the ABBO price and displayed and re-priced one MPV inferior to the ABBO. If during a Route Timer, ABBO markets move and the FIND Order becomes non-marketable against the ABBO and BBO, the FIND Order will post on the order book at its limit price. If the FIND Order is locked or crossed by away quotes, it will route at the completion of the Route Timer. However, if the ABBO worsens but remains better than the BBO, the FIND Order will re-price and be re-exposed at the new price(s) without interrupting the Route Timer.
If, during the Route Timer, any new interest arrives opposite the FIND Order that is equal to or better than the ABBO price, the FIND Order will trade against such new interest at the ABBO price, unless the ABBO is improved to a price which crosses the FIND Order's already displayed price, in which case the incoming order will execute at the previous ABBO price as the away market crossed a displayed price. Paragraph (a)(iii)(B)(2) of Options 5, Section 4 is intended to describe the possible scenarios that may occur during a Route Timer that has been initiated for a FIND Order. The Exchange believes that describing these scenarios in this introductory paragraph will provide a basis to understand certain FIND Order behaviors in certain circumstances and eliminate the need to have these circumstances repeated throughout the rule. The proposed remaining paragraphs outline System behavior in various circumstances taking into consideration away market pricing to provide market participants with expected outcomes.
Proposed ISE Options 5, Section 4(a)(iii)(B)(3) sets forth a scenario where a FIND Order received after an Opening Process is not marketable against the BBO or the ABBO. In this case, the FIND Order will be entered into the order book at its limit price and treated as
Proposed ISE Options 5, Section 4(a)(iii)(B)(4) describes a scenario where a FIND Order received after an Opening Process is marketable against the BBO when the ABBO is inferior to the BBO. In this case the FIND Order will be traded on the Exchange at or better than the BBO price. If the FIND Order has size remaining after exhausting the BBO, the Exchange proposes that it may: (1) Trade at the next BBO price (or prices) if the order price is locking or crossing that price (or prices) up to and including the ABBO price, (2) be entered into the order book at its limit price, or (3) if locking or crossing the ABBO, be entered into the order book at the ABBO price and displayed one MPV away from the ABBO. The FIND Order will be treated as DNR for the remainder of the trading day, even in the event that there is a new Opening Process after a trading halt.
Proposed ISE Options 5, Section 4(a)(iii)(B)(5) describes a scenario where a FIND Order received after an Opening Process is marketable against the BBO when the ABBO is equal to the BBO. In this case, the FIND Order will be traded on the Exchange at the BBO. If the FIND Order has size remaining after exhausting the BBO, it will initiate a Route Timer, and expose the FIND Order at the ABBO to allow market participants an opportunity to interact with the remainder of the FIND Order. During the Route Timer, the FIND Order will be included in the BBO at a price one MPV away from the ABBO. If during the Route Timer, the ABBO markets move such that the FIND Order is no longer marketable against the ABBO, the Exchange proposes that it may: (i) Trade at the next BBO price (or prices) if the FIND Order price is locking or crossing that price (or prices), and/or (ii) be entered into the order book at its limit price if not locking or crossing the BBO.
Proposed ISE Options 5, Section 4(a)(iii)(B)(6) describes a scenario where at the end of the Route Timer pursuant to subparagraph (5) above, the FIND Order is still marketable with the ABBO. In this case, the FIND Order will route to an away market up to a size equal to the lesser of either: (1) An away market's size or (2) the remaining size of the FIND Order. If the FIND Order still has remaining size after routing, the Exchange proposes that it will (i) trade at the next BBO price or better, subject to the order's limit price, and, if contracts still remain unexecuted, the remaining size will be routed to away markets disseminating the same price as the BBO, or (ii) be entered into the order book and posted either at its limit price or re-priced one MPV away if the order would otherwise lock or cross the ABBO. If size still remains, as is always the case, the FIND Order will not be eligible for routing until the next time the option series is subject to a new Opening Process, which may include a re-opening after a trading halt.
Proposed ISE Options 5, Section 4(a)(iii)(B)(7) describes a scenario where a FIND Order is received after an Opening Process that is marketable against the ABBO when the ABBO is better than the BBO. In this case, the FIND Order will initiate a Route Timer, and expose the order at the ABBO to allow Members and other market participants an opportunity to interact with the FIND Order. As described within ISE Options 5, Section 4(a)(iii)(B)(8), if, at the end of the Route Timer pursuant to subparagraph (7) above, the ABBO is still at the best price and is marketable with the FIND Order, the order will route to the away market(s) whose disseminated price(s) is better than the BBO, up to a size equal to the lesser of either: (1) The away markets' size, or (2) the remaining size of the FIND Order. If the FIND Order still has remaining size after such routing, it will (i) trade at the BBO price or better, subject to the order's limit price, and, if contracts still remain unexecuted, the remaining size will be routed to away markets disseminating the same price as the BBO, or (ii) be entered into the order book and posted either at its limit price or re-priced one MPV away if the order would otherwise lock or cross the ABBO. If the FIND Order still has remaining size it will not be eligible for routing until the next time the option series is subject to a new Opening Process, which may include a re-opening after a trading halt.
Finally, proposed ISE Options 5, Section 4(a)(iii)(B)(9) provides that a FIND Order that is routed to an away market(s) will be marked as an Intermarket Sweep Order “ISO” and designated as an IOC order.
The Exchange proposes to adopt a SRCH Order functionality at proposed Options 5, Section 4(a)(iii)(C). The routing process for a SRCH Order is the same as BX Options 5, Section 4(a)(iii)(C). A SRCH Order is routable at any time the option series is open for trading. A SRCH Order on the order book during an Opening Process (including a re-opening following a trading halt), whether it is received prior to an Opening Process or it is a Good-Till-Canceled Order
Proposed ISE Options 5, Section 4(a)(iii)(C)(1) provides, similar to a FIND Order, that at the end of an Opening Process, any SRCH Order that is priced through the Opening Price, as defined within Options 3, Section 8(a)(iii), will be cancelled, and any SRCH Order that is at or inferior to the Opening Price will execute or book pursuant to Options 3, Section 8(k). With respect to both FIND and SRCH Orders, Options 3, Section 8 provides a process whereby ISE arrives at an Opening Price. The System cancels any order or quote priced through the Opening Price which was not able to be satisfied either by routing to an away destination or trading in full as part of the opening trade.
Similar to the FIND Order proposal, the Exchange proposes to add a paragraph at proposed ISE Options 5, Section 4(a)(iii)(C)(2), which is intended to describe at the outset possible scenarios that may occur during a Route Timer, including if the ABBO moves and if marketable new interest arrives. In the paragraphs that follow, paragraph (C)(2) would apply in the case where a Route Timer is initiated. Proposed ISE Options 5, Section 4(a)(iii)(C)(2) would provide that, generally, during a Route Timer a SRCH Order will be included in the displayed BBO at its limit price, unless the SRCH Order locks or crosses the ABBO, in which case it will be entered into the order book at the ABBO price and displayed one MPV inferior to the ABBO. If there exists a locked ABBO when the SRCH Order is entered onto the order book, the SRCH Order will be entered into the order book at the ABBO price and displayed one MPV inferior to the ABBO. Once on the order book, the SRCH Order may route if it is locked or crossed by an away market.
If during a Route Timer, ABBO markets move such that the SRCH Order is no longer marketable against the ABBO or BBO, the SRCH Order will
As noted herein and proposed within proposed ISE Options 5, Section 4(a)(iii)(C)(3), a SRCH Order received after an Opening Process that is not marketable against the BBO or the ABBO will be entered into the order book at its limit price. Once on the order book, the SRCH Order is eligible for routing if it is locked or crossed by an away market.
Proposed ISE Options 5, Section 4(a)(iii)(C)(4) presents a scenario where a SRCH Order received after an Opening Process is marketable against the BBO when the ABBO is inferior to the BBO. In this case, the SRCH Order will trade at or better than the BBO price. If the SRCH Order has size remaining after exhausting the BBO, the Exchange proposes that it may: (1) Trade at the next BBO price (or prices) if the order price is locking or crossing that price (or prices) up to and including the ABBO price, and/or (2) be routed, subject to a Route Timer, to away markets if all Exchange interest at better or equal prices has been exhausted, and/or (3) be entered into the order book at its limit price if not locking or crossing the BBO or the ABBO.
Proposed ISE Options 5, Section 4(a)(iii)(C)(5) provides a scenario where the SRCH Order received after an Opening Process is marketable against the BBO when the ABBO is equal to the BBO. In this case, the SRCH Order will trade at the BBO. If the SRCH Order has size remaining after exhausting the BBO, it will initiate a Route Timer and expose the SRCH Order at the ABBO to allow Members an opportunity to interact with the remainder of the SRCH Order. During the Route Timer, the SRCH Order will be included in the BBO at a price one MPV away from the ABBO.
Proposed ISE Options 5, Section 4(a)(iii)(C)(6) provides that if at the end of the Route Timer pursuant to subparagraph (5), the SRCH Order is still marketable with the ABBO, the SRCH Order will route to an away market up to a size equal to the lesser of either: (1) The away market's size, or (2) the remaining size of the SRCH Order. If after that the SRCH Order still has remaining size after routing, it may: (i) Trade at the next BBO price (or prices) if the order price is locking or crossing that price (or prices) up to the ABBO price, and/or (ii) be entered into the order book at its limit price if not locking or crossing the BBO or the ABBO.
Proposed ISE Options 5, Section 4(a)(iii)(C)(7) provides a scenario where a SRCH Order received after an Opening Process is marketable against the ABBO when the ABBO is better than the BBO. In this case, the SRCH Order will initiate a Route Timer, and expose the SRCH Order at the ABBO to allow Members an opportunity to interact with the SRCH Order. If during the Route Timer, the ABBO markets move such that the SRCH Order is no longer marketable against the ABBO, it may: (i) Trade at the next BBO price (or prices) if the SRCH Order price is locking or crossing that price (or prices), and/or (ii) be entered into the order book at its limit price if not locking or crossing the BBO.
Proposed ISE Options 5, Section 4(a)(iii)(C)(8) provides that if at the end of the Route Timer pursuant to subparagraph (7), the ABBO is still the best price and is marketable with the SRCH Order, the order will route to the away market(s) whose disseminated price(s) is better than the BBO, up to a size equal to the lesser of either: (1) The away markets' size, or (2) the remaining size of the SRCH Order. However, if the SRCH Order still has remaining size after such routing, the Exchange proposes that it may: (i) Trade at the next BBO price (or prices) if the order price is locking or crossing that price (or prices) up to the ABBO price, and/or (ii) be entered into the order book at its limit price if not locking or crossing the BBO or the ABBO.
Finally, as proposed in ISE Options 5, Section 4(a)(iii)(C)(9), and similar to FIND Orders, a SRCH Order that is routed to an away market(s) will be marked as an ISO and designated as an IOC Order.
Currently, Options 3, Section 5(b) provides that orders, other than Intermarket Sweep Orders (as defined in Options 5, Section 1(h)), will not be automatically executed by the System at prices inferior to the NBBO (as defined in Options 5, Section 1(j)).
The Exchange proposes to amend Options 3, Section 5(c) to specify that the System will automatically execute eligible orders using the Exchange's displayed BBO or the Exchange's non-displayed order book (“internal BBO”) if the best bid and/or offer on the Exchange has been re-priced. With this change, a DNR order that locks or crosses the ABBO may re-price and rest on the order book. Today, the DNR Order that locks or crosses the ABBO would be cancelled. The re-pricing itself is proposed to be described within Options 3, Section 5(c) and (d) similar to BX Options 3, Section 5(c) and (d). Currently, Options 3, Section 5(d) describes Trade-Through Compliance and Locked or Crossed Market behavior.
The Exchange proposes to add rule text within Options 3, Section 5(d) to describe how a non-routable order would be re-priced and remove rule text that describes the flash functionality, which is being eliminated, and language providing that, in lieu of using the flash functionality, Members may specify that a Non-Customer order should instead be cancelled automatically by the System at the time of receipt.
Specifically, the Exchange proposes to state within Options 3, Section 5(c), “The System automatically executes eligible orders using the Exchange's displayed best bid and offer (“BBO”) or the Exchange's non-displayed order book (“internal BBO”) if the best bid and/or offer on the Exchange has been re-priced pursuant to subsection (d)
The Exchange proposes to remove the rule text within Supplementary Material .01 to Options 5, Section 2 that provides,
All public customer ISOs entered by an Electronic Access Member on behalf of an Eligible Exchange shall be represented on the Exchange as Priority Customer Orders, as defined in Options 1, Section 1(a)(38). There shall be no obligation on Electronic Access Members to determine whether the public customer for whom the Eligible Exchange is routing an ISO meets the definition of a Priority Customer.
Current ISE Options 5, Section 4(f) provides, “Entering Members whose orders are routed to away markets shall be obligated to honor such trades that are executed on away markets to the same extent they would be obligated to honor a trade executed on the Exchange.” The Exchange believes that Options 5, Section 4(f), which is proposed to be relocated to Options 5, Section 4(a)(ii), is more expansive than Supplementary Material .01 to Options 5, Section 4 and would apply to the indicator for the type of market participant. Furthermore, obligations associated with submitting ISO Orders are born by the member submitting the ISO Order. Each Exchange's rules describe how ISO Orders may be utilized.
The Exchange proposes to remove the rule text within Supplementary Material .07 to Options 5, Section 2 that provides, “All orders entered on the Exchange and routed to another exchange via an ISO pursuant to the Supplementary Material of this Options 5, Section 2 that result in an execution shall be binding on the Member that entered such orders.” As noted above, current ISE Options 5, Section 4(f) provides that, “Entering Members whose orders are routed to away markets shall be obligated to honor such trades that are executed on away markets to the same extent they would be obligated to honor a trade executed on the Exchange.” Supplementary Material .07 to Options 5, Section 2 refers to orders entered pursuant to the flash functionality pursuant to Supplementary Material .02 to Options 5, Section 2, which will be eliminated and, therefore, renders the rule text within Supplementary Material .07 to Options 5, Section 2 unnecessary.
The Exchange proposes to remove the rule text within Supplementary Material .01 to Options 5, Section 4 that provides, “Options 5, Section 4 does not prohibit NES or third-party unaffiliated routing broker-dealers used by NES from designating a preferred market-maker at the other exchange to which the order is being routed pursuant to Options 5, Section 4.” As noted above, current Options 5, Section 4(f) provides, “Entering Members whose orders are routed to away markets shall be obligated to honor such trades that are executed on away markets to the same extent they would be obligated to honor a trade executed on the Exchange.” The Exchange believes that this rule is more expansive than Supplementary Material .01 to Options 5, Section 4 and would apply to designating a preferred market-maker.
The Exchange proposes to remove the rule text within the Supplementary Material .02 to Options 5, Section 4 that provides, “In the event that NES cannot provide Routing Services, the Exchange will cancel orders that, if processed by the Exchange, would violate Options 5, Section 1 (prohibition on trade-throughs) or Options 5, Section 3 (prohibition on locked and crossed markets).” The Exchange's proposal to re-price orders which would otherwise lock or cross an away market would cause an order, that was subject to routing, to rest on the order book in the event that NES was unable to provide routing services. The Exchange proposes to remove the rule text within Supplementary Material .02 to Options 5, Section 4 to permit the Exchange to re-price and rest such orders on the order book, similar to DNR Orders.
Finally, the Exchange proposes to renumber the rule text within Supplementary Material .03 to Options 5, Section 4 to .01.
The Exchange intends to begin implementation of the proposed rule change for ISE prior to December 22, 2023. Separately, the Exchange plans to begin implementation of the proposed rule change prior to December 23, 2022, with respect to MRX, and prior to September 1, 2023, with respect to GEMX. Each implementation would commence with a limited symbol migration and continue to migrate symbols over several weeks. The Exchange will issue an Options Trader Alert to Members to provide notification of the symbols that will migrate and the relevant dates for each exchange.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
Additionally, today, orders that are not automatically executed are handled pursuant to the flash functionality as provided in Supplementary Material .02 to Options 5, Section 2; provided that Members may specify that a Non-
While the Exchange is eliminating the current flash functionality, ISE is proposing to adopt order routing strategies that include a Route Timer that, similar to flash functionality, will continue to advertise orders prior to routing them in an attempt to obtain a local execution. Unlike the flash functionality where Non-Customer orders may opt out, the Route Timer will be established for each order that may route. During the Route Timer, similar to the flash functionality, Members may enter responses up to the size of the order being exposed. However, unlike flash functionality, an order that matches the price of an order during the Route Time will trade against that order without waiting for the Route Timer to complete. In contrast, with flash functionality, orders allocate at the end of the timer, with the exception of specific scenarios that will cause early termination
The Exchange's proposal to remove Sweep Orders within Supplementary Material .05 to Options 5, Section 2 and Options 3, Section 7(s) is consistent with the Act as a Sweep Order would no longer be necessary without the flash functionality and Sweep Orders would be discontinued. Sweep Orders do not enter the flash functionality process of Supplementary Material .02 of Options 5, Section 2 and are processed separately. Sweep Orders are not necessary to facilitate the routing of Public Customer and Non-Customer orders to away markets because the proposed routing functionality would route all orders to away markets uniformly. Additionally, uniformly, all orders would be subject to re-pricing if the order would otherwise lock or cross an away market. The Exchange would continue to not cancel marketable orders that could not be executed on ISE because the order would lock or cross an away market, rather the order would be re-priced with the new routing functionality. With the new routing process, a Route Timer would begin for each order that is subject to routing on the Exchange. While Members may not opt out of the Route Timer, as is the case today, the proposed routing process would create a uniform streamlined process for routing all orders (FIND and SRCH) where a market participant has elected to have an order routed; Members may continue to elect to not have their orders routed. The new routing process does not distinguish as between Public Customer orders and Non-Customer orders, rather all orders would be processed in the same manner. Further, the proposed routing process would serve to further harmonize routing across Nasdaq affiliated markets.
The Exchange's proposal to remove Supplementary Material .04 to Options 5, Section 2, which sets forth routing procedures for Non-Customer orders that opt out of being processed under the flash functionality is consistent with the Act. The Exchange's proposal replaces its current away routing regime with the proposed FIND and SRCH order routing types; all orders would be processed in a uniform manner. The processing of Sweep Orders and the routing procedures under Supplementary Material .04 to Options 5, Section 2 were established as alternative routing procedures to the flash functionality and because the Exchange proposes to eliminate the flash order functionality, these routing procedures are no longer needed under the proposed routing procedures.
NES will continue to route orders to away markets on behalf of ISE. Orders executed on ISE would continue to not trade through away markets. Orders would execute at the best price, whether locally or on an away market. For these above reasons, the Exchange believes that eliminating the flash functionality and adopting routing functionality similar to BX will continue to protect investors and the general public by continuing to provide Members with an ability to route to away markets at the best price in the event ISE is not at the best price or elect not to route.
The Exchange's proposal to offer two new routing strategies to Members, similar to BX, is consistent with the Act as it will provide Members with a greater choice when routing. FIND and SRCH Orders will route away when ISE is not at the best price. All Members may elect to route orders, as FIND or SRCH, or elect not to route orders (DNR Orders).
Re-pricing orders that would otherwise lock or cross an away market, as proposed within Options 3, Section 5 is consistent with the Act. Today, BX re-prices orders by displaying them one MPV away from the best bid or offer.
The Exchange's proposal describes a number of potential routing scenarios to provide Members with greater transparency as to the manner in which the System would handle their order. The proposed rule also serves to inform Members about potential outcomes if a member elects to mark their order as “DNR.” The various scenarios are intended to bring greater transparency to the Exchange's Rules.
The Exchange's proposal to only utilize FIX to route orders is consistent with the Act because the OTTO protocol is not designed for routing. Today, Members may not route orders through OTTO and this will not be changing as a result of the change in routing rules. Members on ISE may submit and route all orders through FIX. OTTO is an optional port available to all Members on ISE for the submission of orders.
The Exchange's proposal to remove the rule text within Supplementary Material .01 to Options 5, Section 2 is consistent with the Act. Today, ISE Options 5, Section 4(f) requires Members to honor trades that are executed on away markets to the same extent they would be obligated to honor a trade executed on the Exchange. This is the case for all options exchanges that receive routing instructions from their members. Today, an ISE Member that submits an order and does not mark that order as DNR would be subject to the flash functionality and routing rules within Options 5, Section 4. If that order routed to an away market, the Member would be obligated to honor that trade on the away market. Supplementary Material .01 to Options 5, Section 2 would require a public customer ISO entered by an Electronic Access Member to be represented on the Exchange as a
The Exchange's proposal to remove the rule text within Supplementary Material .07 to Options 5, Section 2 is consistent with the Act. Supplementary Material .07 to Options 5, Section 2 refers to orders entered pursuant to the flash functionality within Supplementary Material .02 to Options 5, Section 2, which will be eliminated, and, therefore, renders the rule text within Supplementary Material .07 to Options 5, Section 2 unnecessary.
The Exchange's proposal to remove the rule text within Supplementary Material .01 to Options 5, Section 4 is consistent with the Act. Supplementary Material .01 to Options 5, Section 4 states that Options 5, Section 4 does not prohibit NES or third-party unaffiliated routing broker-dealers used by NES from designating a preferred market-maker at the other exchange to which the order is being routed pursuant to Options 5, Section 4. The Exchange believes that it is not necessary to retain this rule text, as Options 5, Section 4(f) obligates Members to honor such trades that are executed on away markets, to the same extent they would be obligated to honor a trade executed on the Exchange. The Exchange notes that once an order is routed to an away market, the rules of the away market are in effect. For example, if an order was routed from Nasdaq ISE to Nasdaq Phlx LLC (“Phlx”), the Phlx rules would apply with respect to the execution of that order. The ISE Member would be required to honor the trade executed on Phlx pursuant to Phlx's rules.
The Exchange's proposal to remove the rule text within the Supplementary Material .02 to Options 5, Section 4 is consistent with the Act because the Exchange proposes to re-price orders which would otherwise lock or cross an away market. This proposal would permit the Exchange to re-price and rest such orders on the order book, similar to DNR Orders.
The Exchange's proposal to remove pricing related to flash functionality is reasonable, equitable and not unfairly discriminatory because the flash functionality would no longer be available to any Member. It is reasonable to remove the fees related to flash orders and the references to flash orders from the Pricing Schedule because the Exchange is removing the flash functionality from its Rulebook. Additionally, it is equitable and not unfairly discriminatory to remove the fees related to flash orders and the references to flash orders from the Pricing Schedule because no Exchange Member would be able to utilize the flash functionality once it is removed from the System.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to adopt routing, similar to BX,
The Exchange's proposal to remove Sweep Orders within Supplementary Material .05 to Options 5, Section 2 and Options 3, Section 7(s) does not impose an undue burden on competition because a Sweep Order would no longer be necessary without the flash functionality and Sweep Orders would be discontinued.
The Exchange's proposal to only utilize FIX to route order does not impose an undue burden on competition because the OTTO protocol is not designed for routing. Today, Members may not route orders through OTTO and this will not be changing as a result of the change in routing rules. Members on ISE may submit and route all orders through FIX. OTTO is an optional port available to all Members on ISE for submitting orders.
The Exchange's proposal to re-price orders that would lock or cross away markets does not impose an undue burden on inter-market competition. Similar to BX Options 5, Section 4, the Exchange would re-price orders one MPV away from the best bid or offer. Better priced orders would continue to be accessible on ISE's order book. ISE would continue to not trade through an away market. Any order that locks or crosses an away market on ISE would be re-priced as a result of this amendment. This would include DNR orders resting on the order book and FIND and SRCH Orders that have not yet routed and are subject to a Route Timer.
The Exchange's proposal to remove the rule text within Supplementary Material .01 to Options 5, Section 2, Supplementary Material .07 to Options 5, Section 2 and Supplementary Material .01 to Options 5, Section 4 does not impose an undue burden on competition because ISE Options 5, Section 4(f) already requires Members to honor trades that are executed on away markets to the same extent they would be obligated to honor a trade executed on the Exchange. This would apply to the indicator for the type of market participant and designating a preferred market-maker, as well as obviate the need for redundant or unnecessary rule text.
The proposal to remove Supplementary Material .07 to Options 5, Section 2 does not impose an undue burden on competition. This rule discusses the obligation of a member who has entered an order on the Exchange that is routed away via an ISO pursuant to the flash functionality. The Exchange is proposing to remove the flash functionality, so the rule is no longer needed. In addition, obligations associated with submitting ISO Orders are born by the member submitting the ISO Order. Each Exchange's rules describe how ISO Orders may be utilized.
The Exchange's proposal to remove pricing related to flash functionality does not impose an undue burden on competition because the flash
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, if consistent with the protection of investors and the public interest, 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend MRX's Pricing Schedule at Options 7 to assess membership, port and market data fees.
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.
MRX proposes to amend its Pricing Schedule at Options 7 to assess membership, port and market data fees, which are not assessed today, and which have not been assessed since MRX's inception in 2016. The proposed changes are designed to update fees for MRX's data and services to reflect their current value—rather than their value when it was a new exchange six years ago—based on MRX's ability to deliver value to its customers through technology, liquidity and functionality. Newly-opened exchanges often charge no fees for certain services such as membership, ports and market data in order to attract order flow to an exchange, and later amend their fees to reflect the true value of those services.
This Proposal reflects MRX's assessment that it has gained sufficient market share to compete effectively against the other 15 options exchanges without waiving fees for membership, ports or market data. These types of fees are assessed by options exchanges that compete with MRX in the sale of exchange services—indeed, MRX is the only options exchange (out of the 16 current options exchanges) not assessing membership, port and market data fees today. New exchanges commonly waive connectivity, data and membership fees to attract market participants, facilitating their entry into the market and, once there is sufficient depth and breadth of liquidity, “graduate” to compete against established exchanges and charge fees that reflect the value of their services.
As noted above, MRX Members are not assessed fees for membership today. Under the proposed fee change, MRX Members will be required to pay a monthly Access Fee, which entitles MRX Members to trade on the Exchange based on their membership type. Specifically, MRX proposes to assess Electronic Access Members
In order to receive market making appointments to quote in any options class, CMMs will also be assessed a CMM Trading Right Fee identical to GEMX.
The Exchange is now proposing to adopt a monthly CMM Trading Rights Fee. Under the proposed fee structure, CMMs will be assessed a Trading Rights Fee of $850 per month for the first trading right, which will entitle the CMM to quote in 20 percent of industry volume.
The Exchange proposes to amend fees for the following ports within Options 7, Section 6: (1) FIX,
The OTTO Port, CTI Port, FIX Port, FIX Drop Port and all Disaster Recovery Ports
The SQF Port and the SQF Purge Port will be subject to a monthly cap of $17,500. The SQF Port and SQF Purge Port are available to Market Makers.
The Exchange is not amending the TradeInfo MRX Interface or the Nasdaq MRX Depth of Market, Nasdaq MRX Order Feed, Nasdaq MRX Top Quote Feed, Nasdaq MRX Trades Feed or Nasdaq MRX Spread Feed Ports, all of these aforementioned ports will continue to be assessed no fees. Additionally, as is the case today, the Disaster Recovery Ports for TradeInfo and the Nasdaq MRX Depth of Market, Nasdaq MRX Order Feed, Nasdaq MRX Top Quote Feed, Nasdaq MRX Trades Feed or Nasdaq MRX Spread Feed Ports will not be assessed a fee.
Finally, the Exchange proposes to amend the Disaster Recovery Port Fee from $0 to $50 per port, per month, per account for FIX, SQF, SQF Purge and OTTO Ports and from $0 to $50 per port, per month for CTI, and FIX DROP Ports. Disaster Recovery ports provide connectivity to the Exchange's disaster recovery data center, to be utilized in the event the Exchange should failover during a trading day. The Exchange proposes to assess the aforementioned Disaster Recovery Port Fees to encourage Members to be efficient when purchasing Disaster Recovery ports. Similar to all other ports, Disaster Recovery Ports need to be maintained by the Exchange.
In order to submit orders into MRX, only one order protocol is required, either FIX or OTTO.
The Exchange notes that FIX, and OTTO Ports, as well TradeInfo, are available to all Members and may be utilized to cancel orders. Further, FIX DROP, the Clearing Trade Interface, and TradeInfo are available to all Members and may be utilized to obtain order information. These different protocols are not all necessary to conduct business on MRX; a Member may choose among protocols based on their business workflow.
The Exchange proposes to amend fees for the following market data feeds within Options 7, Section 7: (1) Nasdaq MRX Depth of Market Data;
The Exchange also proposes to assess an Internal Distributor Fee
The Exchange proposes to assess an External Distributor Fee of $2,000 per month for the Nasdaq MRX Depth of Market Feed, Order Feed, and Top Quote Feed, an External Distributor Fee of $1,000 per month for the Trades Feed, and an External Distributor Fee of $1,500 per month for the Spread Feed.
MRX does not currently assess subscriber fees, but proposes to begin assessing Professional
MRX also proposes a Non-Display Enterprise License of $7,500 per month. This license would lower costs for internal professional subscribers and lower administrative costs overall by permitting the distribution of all MRX proprietary direct data feed products to an unlimited number of internal non-display Subscribers without incurring additional fees for each internal Subscriber, or requiring the customer to count internal subscribers.
The Non-Display Enterprise License is in addition to any other associated distributor fees for MRX proprietary direct data feed products.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to the pricing schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for order flow, which constrains its pricing determinations. The fact that the market for order flow is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Congress directed the Commission to “rely on `competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.' ”
Over the years, MRX has amended its transactional pricing to remain competitive and attract order flow to the Exchange.
In June 2019, MRX commenced offering complex orders.
An Exchange can show that a product is “subject to significant substitution-based competitive forces” by introducing evidence that customers can substitute the product for products offered by other exchanges.
NYSE National was able to prove exactly this when it sought approval for the “NYSE National Integrated Feed”
MRX today is essentially in the same position as NYSE National in 2020. MRX has a consistently low percentage of market share, starting at approximately 0.2 percent when it opened as an Exchange and ending in approximately 1.8 percent today. It has a small number of firms that are Members, subscribe to ports, or purchase market data relative to its affiliated options exchanges. Two firms that currently subscribe to MRX market data have terminated all of their subscriptions, and one additional firm that is currently a Member and purchases port services has told the Exchange that it will initiate a review of all of the services it purchases from MRX based on the all-in cost of trading on MRX. Based on prior experience, MRX may see additional cancellations of membership, ports and market data after May 2, 2022.
Chart 1 below shows the January 2022 market share for multiply-listed options by exchange. Of the 16 operating options exchanges, none currently has more than a 13.1% market share, and MRX has the smallest market share at 1.8%. Customers widely distribute their transactions across exchanges according to their business needs and the ability of each exchange to meet those needs through technology, liquidity and functionality. Average market share for the 16 options exchanges is 6.26 percent, with the median at 5.8, and a range between 1.8 and 13.1 percent.
Market share is the percentage of volume on a particular exchange relative to the total volume across all exchanges, and indicates the amount of order flow directed to that exchange. High levels of market share enhance the value of trading, membership, ports and market data.
Chart 2 below compares the number of firms purchasing FIX and SQF ports, memberships, and market data from MRX to the number of firms purchasing such services from the four MRX-affiliated options exchanges, GEMX, ISE, The Nasdaq Stock Market LLC (“NOM”) and Nasdaq PHLX, LLC (“Phlx”).
Chart 2 shows that fewer firms purchased MRX ports in March 2022 than the ports of its options exchange affiliates. As described in detail below, only one order protocol is required to submit orders to MRX, either FIX or OTTO. Quoting protocols are only required to the extent an MRX Member has been appointed as a Market Maker in an options series pursuant to Options 2, Section 1, and only one quoting protocol (SQF) is necessary to quote on MRX. Members may choose a greater number of order entry ports, however, depending on that Member's particular business model.
The experience of MRX's affiliates shows that the number of ports that members choose to purchase varies widely. For example, a review of the Phlx exchange in April 2022 shows that, among its members that purchase ports, approximately 26 percent purchased 1 SQF or FIX port, another 26 percent purchased between 2 and 5 ports, 21 percent purchased between 6 and 10 ports, and 28 percent purchased more than 11 ports. This means that any member has the option of reducing its purchase of port services without purchasing a substitute product by, for example, reconfiguring its systems to change the number of ports from 16 to 14.
By way of comparison, the number of ports that MRX Members purchased in April 2022 also varies widely. For example, approximately 23 percent purchased 1 SQF, FIX or OTTO port,
Chart 2 also shows that MRX has the smallest number of Members relative to its GEMX, ISE, NOM and Phlx affiliates, with approximately 40 members.
With respect to market data, Chart 2 shows that approximately 34 firms subscribe to at least one market data product from MRX in the first quarter of 2022. This is the second lowest number of firms purchasing market data from the Nasdaq-affiliated options exchanges.
As explained above, Nasdaq proposes to introduce fees for five market data feeds: (i) Nasdaq MRX Depth of Market Data (aggregate quotes and orders at the top five price levels on MRX, and a consolidated view of tradable prices beyond the BBO);
The MRX Top Quote Feed and the MRX Trades Feed provide “top-of-book” information. Such information is typically of interest to a broader audience than Members trading on exchanges, including retail investors, media, portfolio managers, competing exchanges and others. For this broader audience, top-of-book data from one exchange is, in general, readily substitutable with the top-of-book information from another exchange,
The other three market data feeds, the Depth of Market Data feed, the Order Feed, and the Spread Feed are generally of more interest to Members trading on the Exchange relative to other market participants but, as noted above, MRX has the smallest market share at 1.8%, and any Member can choose to trade on another exchange if fees for these other three feeds exceed their value.
All of these statistics must be viewed in the context of a field with relatively low barriers to entry. MRX, like many new entrants to the field, offered membership, ports and market data for free to establish itself and gain market share. As new entrants enter the field, MRX can also expect competition from these new entrants. Those new entrants, like MRX, are likely to set membership, port, market data, or other fees to zero, increasing marketplace competition.
In summary, MRX membership, port and market data fees are subject to significant substitution-based competitive forces due to its consistently low percentage of market share, the relatively small number of purchasers for each product, and the purchasers that either cancelled or are reviewing their subscriptions. Implementation of the proposed fees is therefore consistent with the Act.
Each of the proposed membership, port and data fees described below are in line with those of other markets. Setting a fee above competitors is likely to drive away customers, so the most efficient price-setting strategy is to set prices at the same level as other firms.
The Exchange's proposal to adopt membership fees is reasonable, equitable and not unfairly discriminatory. As a self-regulatory organization, MRX's membership department reviews applicants to ensure that each application complies with the rules specified within MRX General 3
The Exchange believes that there are many factors that may cause a market participant to decide to become a member of a particular exchange. Among various factors, the Exchange believes market participants consider: (i) An exchange's available liquidity in options series; (ii) trading functionality offered on a particular market; (iii) product offerings; (iv) customer service on an exchange; and (v) transactional pricing. The Exchange believes that the decision to become a member of an exchange, particularly as a registered market maker, is a complex one that is not solely based on non-transactional costs assessed by an exchange. Market participants weigh the tradeoff between where they choose to deploy liquidity versus where trading opportunities exist. Of course, the cost of membership, ports and market data may factor into a decision to become a member of a certain exchange, but the Exchange believes it is by no means the only factor when comparing exchanges.
Market makers play an important role on options exchanges as they provide liquidity. In options markets, registered market makers are assigned options series
An exchange's trading functionality attracts market participants who may elect, for example, to submit an order into a price improving auction,
Introducing new and innovative products to the marketplace designed to meet customer demands may attract market participants to a particular options venue. New products in the options industry may allow market participants greater trading and hedging opportunities, as well as new avenues to manage risks. The listing of new options products enhances competition among market participants by providing investors with additional investment vehicles, as well as competitive alternatives, to existing investment products. An exchange's proprietary product offering may attract order flow to a particular exchange to trade a particular options product.
The pricing available on a particular exchange may impact a market participant's decision to submit order flow to a particular options venue. The options industry is competitive. Clear substitutes to the Exchange exist in the market for options security transaction services; the Exchange is only one of sixteen options exchanges to which market participants may direct their order flow. Within this environment, market participants can freely, and often do, shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules.
With respect to the CMM Trading Rights Fee, the proposed fees compare favorably with those of other options exchanges. For example, a market maker on MIAX assesses Market Makers a $3,000 one-time fee and then a tiered monthly fee from $7,000 for up to 10 classes to $22,000 for over 100 classes.
The Exchange does not believe that it is unfairly discriminatory to assess different fees for PMMs, CMMs, and EAMs. For PMMs on MRX, the fees required to access the Exchange are substantially lower than those of competing exchanges. For example, a PMM could quote on the Exchange for only $200 (
Membership fees are charged by nearly all exchanges, and all established exchanges with sufficient order flow. In 2022, MEMX LLC (“MEMX”) established a monthly membership fee of $200.
The decision to become a member of an exchange, particularly for registered market makers, is complex, and not solely based on the non-transactional costs assessed by an exchange. As noted herein, specific factors include, but are not limited to: (i) An exchange's available liquidity in options series; (ii) trading functionality offered on a particular market; (iii) product offerings; (iv) customer service on an exchange; and (v) transactional pricing. Becoming a member of the exchange does not “lock” a potential member into a market or diminish the overall competition for exchange services. The decision to become a member of an exchange is made at the beginning of the relationship, and is no less subject to competition than trading fees or market data.
In lieu of becoming a member at each options exchange, a market participant may join one exchange and elect to have their orders routed in the event that a better price is available on an away market. Nothing in the Order Protection Rule requires a firm to become a Member at MRX.
In lieu of joining an exchange, a third-party may be utilized to execute an order on an exchange. For example, a third-party broker-dealer Member of MRX may be utilized by a retail investor to submit orders into an Exchange. An institutional investor may utilize a broker-dealer, a service bureau,
The Exchange's proposal to amend port fees is reasonable, equitable and not unfairly discriminatory. The proposed port fees are similar to the fees assessed by GEMX,
Members choose among the protocols based on their business workflow. The Exchange would uniformly assess the port fees to all Members and would uniformly apply monthly caps.
Ports are only available to MRX Members or service bureaus, and only an MRX Member may utilize a port.
Once an applicant is approved for membership on MRX and becomes a Member, the Exchange assigns the Member a badge
MRX is obligated to regulate its Members and secure access to its environment. In order to properly regulate its Members and secure the trading environment, MRX takes measures to ensure access is monitored and maintained with various controls. Ports are a method utilized by the Exchange to grant Members secure access to communicate with the Exchange and exercise trading rights. When a market participant elects to be a Member of MRX, and is approved for membership by MRX, the Member is granted trading rights to enter orders into MRX through secure ports.
As noted herein, there is no legal or regulatory requirement that a market participant become a Member of MRX, or, if it is a Member, to purchase port services beyond the one quoting protocol or one order entry protocol necessary to quote or submit orders on MRX.
The decision as to what types and number of ports to buy, like the decision to become a member of an exchange, is made at the beginning of that relationship, but that decision may be altered at any time as a market participant's business strategy evolves or the manner in which the market participant interacts with the exchange changes over time. As noted herein, only one protocol is required to submit orders. Depending on a Member's business model, one protocol may be better suited for a Member than another. Port selection is often made at the beginning of a trading relationship, like the decision whether to become a member, but a member is not “locked” into a particular number or type of ports over the course of the business relationship.
The Exchange's proposal to adopt market data fees is reasonable, equitable and not unfairly discriminatory. The five market data feeds at issue here—the Depth of Market Feed,
Market data, often mistakenly characterized as the “exhaust” of an exchange, is in fact the engine that drives liquidity: Firms are attracted by high levels of liquidity, diverse offerings and bids and offers close to the NBBO. Market data, unlike membership or ports, is not sold only to members, but rather is open to investors generally.
Nasdaq is subject to direct competition in the sale of market data. As explained above, Nasdaq proposes to introduce fees for both top-of-book and depth-of-book feeds. Top-of-book feeds are generally of interest to a broader audience that can readily substitute the top-of-book feed of one exchange with that of another. Depth-of-book feeds are, for the most part, of more interest to Members trading on the Exchange than other market participants but MRX has the smallest market share at 1.8%, and any Member can choose to trade on another exchange if fees for these other three feeds exceed their value.
Moreover, MRX lists no proprietary options products that are entirely unique to MRX. Firms can substitute MRX market data with feeds from exchanges that provide a high degree of functionality, including complex orders. Full market data options are available, for example, from Cboe,
Top-of-book data—last trade and best bid and offer information—is sold broadly to a wide of market participants, including the media, the general investing public, retail broker-dealers, regulatory agencies, and many others in addition to broker-dealers routing order flow. Because MRX does not list options on products that are exclusively available on MRX, then these same types of general-interest consumers of data can substitute MRX data with data from any exchange that lists such multiply-listed options, or through OPRA, in the same sense that consumers of top-of-book data on equity exchanges compete with other sellers of top-of-book data.
All of this competition must be understood in the context of the fact that all broker-dealers involved in order routing must take consolidated data from OPRA, and proprietary data feeds cannot be used to meet that particular requirement. As such, all proprietary data feeds are optional.
After 6 years, MRX proposes to commence assessing membership, port, and market data fees, just as all other options exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes its proposal remains competitive with other options markets, and will offer market participants with another choice of venue to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed membership fees are identical to membership fees assessed by GEMX.
With respect to the CMM Trading Rights Fee, the proposed fees compare favorably with those of other options exchanges.
The proposed port fees are similar to port fees assessed by GEMX
With respect to the higher fees assessed for SQF Ports and SQF Purge Ports, the Exchange notes that only Market Makers may utilize these ports. Market Makers are required to provide continuous two-sided quotes on a daily basis,
The initiation of market data fees will not impose an undue burden on inter-market competition. Since February 2016, MRX has disseminated market data without charging a fee, allowing MRX time to build order flow. Now that order flow has increased from approximately 0.2 percent to 1.8 percent of the market, MRX proposes charging fees that reflect the value of that data.
Permitting MRX to charge a fee for its data does not impose any burden on the ability of other options exchanges to compete. Each of the remaining 15 options exchanges currently sells its market data, and is capable of modifying its fees response to the proposed changes by MRX. Moreover, allowing MRX, or any new market entrant, to waive fees for a period of time to allow it to become established encourages market entry and thereby ultimately promotes competition.
If the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
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.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to amend a previous order granted by the Commission that permits certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
First Eagle Alternative Capital BDC, Inc., First Eagle Credit Opportunities Fund, First Eagle Investment Management, LLC, First Eagle Alternative Credit, LLC, First Eagle Alternative Credit EU, LLC, First Eagle Credit Opportunities Fund SPV, LLC, First Eagle Alternative Capital Holdings, Inc., First Eagle Direct Lending Fund I, LP, First Eagle Direct Lending Fund I (EE), LP, First Eagle Direct Lending Fund I (Parallel), LP, First Eagle DL Fund I Aggregator LLC, NewStar Arlington Senior Loan Program LLC, First Eagle Berkeley Fund CLO LLC, First Eagle Commercial Loan Funding 2016-1 LLC, First Eagle Commercial Loan Originator I LLC, NewStar Fairfield Fund CLO Ltd., First Eagle Warehouse Funding I LLC, First Eagle Dartmouth Holding LLC, First Eagle Direct Lending Fund III LLC, First Eagle Direct Lending Co-Invest III (E) LLC, First Eagle Direct Lending Co-Invest III LLC, First Eagle Direct Lending Fund III (A) LLC, First Eagle Direct Lending Fund IV, LLC, First Eagle Direct Lending Levered Fund IV, LLC, First Eagle Direct Lending IV Co-Invest, LLC, First Eagle Direct Lending Levered Fund IV SPV, LLC, Lake Shore MM CLO I Ltd., Lake Shore MM CLO II Ltd., Lake Shore MM CLO III LLC, Lake Shore MM CLO IV LLC, First Eagle Direct Lending V-A, LLC, First Eagle Direct Lending V-B, LLC, First Eagle Direct Lending V-B SPV, LLC, First Eagle Direct Lending V-C SCSP, South Shore V LLC, South Shore VI LLC, Wind River 2014-3K CLO Ltd., Wind River 2016-1K CLO Ltd., Wind River 2013-1 CLO Ltd., Wind River 2013-2 CLO Ltd., Wind River 2014-1 CLO Ltd., Wind River 2014-2 CLO Ltd., Wind River 2014-3 CLO Ltd., Wind River 2015-1 CLO Ltd., Wind River 2016-2 CLO Ltd., Wind River 2017-1 CLO Ltd., Wind River 2017-3 CLO Ltd., Wind River 2017-4 CLO Ltd., Wind River 2018-1 CLO Ltd., Wind River 2018-2 CLO Ltd., Wind River 2018-3 CLO Ltd., Wind River 2019-1 CLO Ltd., Wind River 2019-2 CLO Ltd., Wind River 2019-3 CLO Ltd., Wind River 2020-1 CLO Ltd., Wind River 2021-1 CLO Ltd., Wind River 2021-2 CLO Ltd., Wind River 2021-3 CLO Ltd., Wind River 2021-4 CLO Ltd., Bighorn III, Ltd., Bighorn IV, Ltd., Bighorn VI, Ltd., Bighorn VII, Ltd., Bighorn VIII, Ltd., Bighorn X, Ltd., NewStar Commercial Loan Funding 2017-1 LLC, First Eagle Clarendon Fund CLO LLC, NewStar Exeter Fund CLO LLC, Arch Street CLO, Ltd., First Eagle BSL CLO 2019-1 Ltd., Hull Street CLO, Ltd., Longfellow Place CLO, Ltd., Staniford Street CLO, Ltd., First Eagle Strategic Funding, LLC.
The application was filed on March 31, 2022, and amended on April 29, 2022.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Kieran G. Brown, Senior Counsel, or Terri Jordan, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' first amended and restated application, dated April 29, 2022, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at,
For the Commission, by the Division of Investment Management, under delegated authority.
On March 18, 2022, Banque Centrale de Compensation, which conducts business under the name LCH SA (“LCH SA”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
As detailed below, the amendments to the Clearing Supplement and the Procedures would (A) establish a new delegation requirement for Clearing Members in the case of a restructuring affecting an option to purchase Index CDS (an “Index Swaption”); (B) limit LCH's liability to Clearing Members in light of this new requirement; (C) update certain provisions related to the exercise of Index Swaptions; (D) require Clearing Members and Clients consent to disclosure of their contact information in connection with the restructuring or exercise of Index Swaptions; and (E) correct typographical errors.
The proposed rule change would require that Clearing Members delegate to their Clients the authority to send and receive certain notices on their behalf. This new requirement would apply to a
To establish this new requirement, the proposed rule change would amend Part C of the Clearing Supplement and Appendix VIII thereto. Part C sets out the terms applicable to a cleared Index Swaption transaction between a Clearing Member and LCH SA, while Appendix VIII sets out the terms applicable to the corresponding Index Swaption transaction between that Clearing Member and its Client. For example, the proposed rule change would add to Part C new defined terms, such as Restructuring Delegation Beneficiary (which would mean a Client designated by a Clearing Member to send and receive Credit Event Notices and Notices to Exercise Movement Option on its behalf). The proposed rule change similarly would revise existing defined terms, revise existing references to conform to new defined terms or changes in existing defined terms, and revise existing references to take into account the re-numbering of sections.
In addition to these revisions to defined terms and references, the proposed rule change would set out the delegation requirement in a new Section 5.7 of Part C. This new section would apply to Client Cleared Transactions in Index Swaptions that are being restructured, and it would require Clearing Members designate their Clients to act on their behalf with respect to sending and receiving certain notices related to the restructuring. After a Clearing Member designates its Client, LCH SA would deem any delivery or receipt of a restructuring notice by the designated Client to constitute the delivery or receipt of a valid notice by the Clearing Member. LCH SA would treat any reference in the Clearing Supplement to a notice being delivered to or by a Clearing Member accordingly. This new section would generally mirror the provisions of current Section 6.4, which requires that Clearing Members designate their relevant Clients to act on their behalf with respect to exercising and abandoning Index Swaptions that are Client Cleared Transactions. A Clearing Member could withdraw the designation as long as there is no Swaption Restructuring Cleared Transaction registered in the Client Trade Account of the relevant Client.
The proposed rule change would make similar amendments to the provisions found in Appendix VIII of Part C, which must be incorporated into an Index Swaption transaction between a Clearing Member and its Client (collectively, the “Mandatory Provisions”). For example, the proposed rule change would replace current Mandatory Provision 7 with a new provision that would require a Clearing Member to designate its Client in accordance with new Section 5.7 of Part C discussed above. New Mandatory Provision 7 also would require Clients to deliver Credit Event Notices or Notices to Exercise Movement Option directly to its counterparty, and would explain what would happen if the Client does not provide the notification within the required timeframe.
In addition to the changes to Part C and Appendix VIII of the Clearing Supplement, the proposed rule change would amend Section 5 of the Procedures to specify how Clearing Members would notify LCH SA of the delegation. The proposed rule change would do so by amending 5.19, which currently sets out the process for delegations related to exercise of Index Swaptions, so that it applies to delegations related to restructuring as well. Under amended Section 5.19, a Clearing Member must notify LCH SA of the delegation by sending a completed notification form, and a Clearing Member may withdraw the delegation only if no Swaption Restructuring Cleared Transaction is registered in the Client Trade Account of the relevant Restructuring Delegation Beneficiary.
To complement the new delegation requirement, the proposed change would add new Section 13(c) to Part C of the Clearing Supplement. Under new Section 13(c), LCH SA would have no liability to a Clearing Member for any loss, cost or expense arising out of any failure of a Client to perform its obligations or in connection with the delivery of notices related to a restructuring. Section 13(c) would mirror existing Section 13(b), under which LCH SA has no liability to a Clearing Member for any loss, cost or expense arising out of any failure of a Client to perform its obligations in connection with a delegation of authority to exercise Index Swaptions.
Unrelated to the new delegation requirement, the proposed rule change also would amend certain existing provisions found in Section 6 of Part C. Section 6 of Part C describes the process for exercising Index Swaptions and the sending and receiving of notices related to exercise. The purchaser of an Index Swaption exercises it through an Exercise Matched Pair, which consists of a buyer and seller paired by LCH SA. Section 6.1(a) requires that, upon the creation of an Exercise Matched Pair, LCH SA notify the buyer and seller, but it prohibits LCH SA from providing any detail with respect to their identities. The proposed rule change would delete this prohibition as duplicative in light of existing Section 6.1(b). That section dictates the circumstances in which LCH SA may provide the buyer and seller details about each other's identity. LCH SA may only do so through a Protected Exercise Matched Pair Report, and it may only provide access to this report when there is a failure of LCH SA's electronic platform for exercising Index Swaptions. Finally, the proposed rule change would add at the end of 6.1 a new paragraph to state that a Clearing Member expressly consents to the disclosure of its information in accordance with this section through the Protected Exercise Matched Pair Report.
Section 6.5 describes the actions that LCH SA would take when there is a failure of LCH SA's electronic platform for exercising Index Swaptions. As mentioned above, where there is such a failure, LCH SA would provide access to the Protected Exercise Matched Pair Report. The proposed rule change would move from Section 6.1 to Section 6.5 language that requires LCH SA to provide contact information to Index Swaption buyers and sellers comprised within an Exercise Matched Pair. As a result of this change, where there is a failure of LCH SA's electronic platform for exercising Index Swaptions, LCH SA would provide each Clearing Member (or Client to whom the Clearing Member has delegated authority to exercise) with the other's address, fax number, telephone number, and contact email. LCH SA would provide this information in addition to providing access to the Protected Exercise Matched Pair Report. Finally, as part of this change, the proposed rule change would amend references to the Protected Exercise Matched Pair Report throughout Part C. LCH is making this change to accommodate differences in how it
As part of the amendments to the Clearing Supplement, the proposed rule change also would add provisions that state expressly that Clearing Members and Clients consent to the disclosure of their contact information in connection with providing notices related to the restructuring of Index Swaptions and the exercise of Index Swaptions. These provisions would help to ensure that LCH SA is able to disclose this information under applicable law.
Finally, the proposed rule change would correct typographical errors in Part C of the Clearing Supplement and the Mandatory Provisions found in Appendix VIII.
Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of LCH SA be designed to promote the prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions.
The Commission believes that the changes to implement the new delegation requirement, as discussed in Part II.A above, should promote the prompt and accurate clearance and settlement of Index Swaptions at LCH SA. Under the delegation requirement, a Client would send and receive notices related to a restructuring affecting one of its Index Swaptions directly, rather than relying on its Clearing Member. The Commission believes these changes therefore would reduce the operational burden on Clearing Members in clearing Index Swaptions for their Clients. The Commission believes reducing the operational burden on Clearing Members in clearing Index Swaptions for their Clients could in turn encourage more Clearing Members to offer such clearing service to their Clients, and therefore could promote the prompt and accurate clearance and settlement of Index Swaptions at LCH SA.
For similar reasons, the Commission believes that the changes discussed in Parts II.B and II.D above should promote the prompt and accurate clearance and settlement of Index Swaptions at LCH SA. The Commission believes that limiting LCH SA's liability in connection with the new delegation requirement should reduce the risk to LCH SA in relying on Clients to satisfy their obligations under the delegation. The Commission believes that doing so should enable LCH SA to implement the new delegation requirement. The Commission similarly believes that having Clearing Members and Clients consent to the disclosure of their contact information in connection with providing notices related to the restructuring of Index Swaptions should enable LCH SA to implement the new delegation requirement. The Commission believes such consent would enable LCH SA to disclose the contact information and that LCH SA may need to disclose such information in order for Clients to send notices related to a restructuring directly to other Clearing Members and Clients. The Commission therefore believes that both of these changes should facilitate LCH SA's ability to implement the new delegation requirement, which, for the reasons discussed above, the Commission believes should promote the prompt and accurate clearance and settlement of Index Swaptions transactions at LCH SA.
The Commission further believes that the changes related to the exercise of Index Swaptions, including having Clearing Members and Clients consent to the disclosure of their contact information in connection with exercise, as discussed in Parts II.C and II.D above, should promote the prompt ad accurate clearance and settlement Index Swaptions at LCH SA. The Commission believes that the changes described in Part II.C above would help to clarify the content of the Exercise Matched Pair Report and that having Clearing Members and Clients consent to the disclosure of their contact information, as described in Part II.D above, should enable LCH SA to provide contact information, including through the Exercise Matched Pair Report. The Commission believes that where there is a failure of LCH SA's electronic platform for exercising Index Swaptions, Clearing Members and Clients could use the information in the Exercise Matched Pair Report, and the other contract information provided by LCH SA, to send notices related to exercise. The Commission therefore believes these changes should help to ensure that buyers of Index Swaptions are able to exercise their positions even where there is a failure of LCH SA's electronic exercise platform. The Commission believes that doing so should promote the prompt and accurate clearance and settlement of Index Swaptions at LCH SA.
Finally, the Commission believes that correcting typographical errors, as discussed in Part II.E above, should help to ensure the clarity and accuracy of the Clearing Supplement, and therefore should promote the prompt and accurate clearance and settlement of transactions using the Clearing Supplement.
Therefore, the Commission finds that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad-22(e)(17) requires that LCH SA establish, implement, maintain and enforce written policies and procedures reasonably designed to manage its operational risks by, among other things, ensuring that systems have a high degree of operational reliability.
The Commission further believes that the changes discussed in Parts II.C and II.D above should enable LCH SA to provide contact information, including through the Exercise Matched Pair Report, where there is a failure of LCH SA's electronic exercise platform. The Commission therefore believes that these changes should help to ensure that buyers of Index Swaptions are able to exercise their positions even where there is a failure of LCH SA's electronic exercise platform, and accordingly, these aspects of the proposed rule should increase the operational reliability of the exercise process for Index Swaptions.
Therefore, the Commission finds that these aspects of the proposed rule change are consistent with Rule 17Ad-22(e)(17).
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act, and in particular, with the requirements of Section 17A(b)(3)(F) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 3, 2021, New York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc. (collectively, the “Exchanges”) each 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
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the Department of Homeland Security (DHS). The purpose of which is to set forth the terms, conditions, and safeguards under which DHS will disclose information to SSA in order to identify noncitizens who leave the United States voluntarily and noncitizens who are removed from the United States.
The deadline to submit comments on the proposed matching program is June 17, 2022. The matching program will be applicable on July 19, 2022, or once a minimum of 30 days after publication of this notice have elapsed, whichever is later. The matching program will be in effect for a period of 18 months.
You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2022-0011 so that we may associate your comments with the correct regulation.
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Interested parties may submit general questions about the matching program to Melissa Feldhan, Division Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore MD 21235-6401, at telephone: (410) 965-1416, or send an email to
For functions of this matching program, “noncitizen” is synonymous with “noncitizen” as defined in section 1101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)), meaning “any person not a citizen or national of the United States.”
SSA and DHS.
This Agreement is executed under the Privacy Act of 1974, 5 U.S.C. 552a, as amended by the Computer Matching and Privacy Protection Act (CMPPA) of 1988, Public Law (Pub. L.) 100-503, 102 Stat. 2507 (1988), as amended, and the Computer Matching and Privacy Protection Amendments of 1990, and the regulations and guidance promulgated thereunder.
The CMPPA applies when computerized comparisons of Privacy Act-protected records contained within a Federal agency's databases and the records of another organization are made in order to determine an individual's eligibility to receive a Federal benefit. The CMPPA requires the parties participating in a matching program to execute a written agreement specifying the terms and conditions under which the matching program will be conducted.
Legal authorities for the disclosures under this Agreement are covered by various sections of the Social Security Act (Act).
• Section 202(n)(1) of the Act [42 U.S.C. 402(n)] requires the Secretary of Homeland Security to notify the Commissioner of Social Security when certain individuals are removed from the United States under sections 212(a)(6)(A) and 237(a) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(6)(A) or 1227(a);
• Section 1611(a)(1) of the Act [42 U.S.C. 1382c(a)(1)]concerns the definition of eligible individuals;
• 8 U.S.C. 1611 mandates that non-qualified noncitizens (as defined in 8 U.S.C. 1641) do not receive Federal public benefits;
• 8 U.S.C. 1612 also places some limits on qualified noncitizens' ability to receive public benefits;
• Section 1631(e)(1)(B) of the Act [42 U.S.C. 1383(e)(1)(B)] requires SSA to verify declarations of applicants for and recipients of Supplemental Security Income (SSI) payments before making a determination of eligibility or payment amount;
• Section 1631(f) of the Act [42 U.S.C. 1383(f)] requires Federal agencies to provide SSA with information necessary to verify SSI eligibility or benefit amounts or to verify other information related to these determinations.
Section 202(n)(1)(B) of the Act (42 U.S.C. 402(n)(1)(B)) prohibits payment
In addition, certain individuals may be subject to suspension of their SSI payments under section 1614(a)(1)(B)(i) of the Act (42 U.S.C. 1382c(a)(1)(B)(i)), which provides, in part, that an SSI recipient must be a resident of the United States.
This matching program establishes the conditions under which DHS will disclose information to SSA in order to identify noncitizens who leave the United States voluntarily and noncitizens who are removed from the United States. These noncitizens may be subject to suspension of payments or nonpayment of benefits or both, and recovery of overpayments. SSA will use DHS data to determine if suspension of payments, nonpayment of benefits, and/or recovery of overpayments, is applicable.
The individuals whose information is involved in this matching program are:
1. Noncitizens who leave the United States voluntarily and are subject to suspension or non-payment of SSI.
2. Noncitizens who are removed from the United States, voluntarily depart, or voluntarily return to their home country from the United States, and are subject to nonpayment of retirement or disability insurance benefits (RSDI). In addition, certain individuals may be subject to suspension of their SSI payments if they are not residents of the United States. If an SSI recipient is not a qualified noncitizen within the statutory definitions, they are ineligible for SSI benefits. A qualified noncitizen may have limited eligibility.
To verify the SSN, SSA will match EID data against records in its Enumeration System. SSA matches the verified SSNs against the existing Master Beneficiary Record (MBR) and SSR records to locate removals (and their dependents or survivors, if any) who have already claimed and are currently receiving RSDI, SSI benefits, or both. SSA will retain the data verified through this matching program on the MBR and SSR, to be associated with future claims activity.
SSA will match the DHS information with SSA's systems of records: Master Files of Social Security Number (SSN) Holders and SSN Applications (Enumeration System), 60-0058, last fully published at 87 FR 263 (January 4, 2022);
In addition, SSA will match the DHS information with the Supplemental Security Income Record and Special Veterans Benefits, 60-0103, last fully published on January 11, 2006 (71 FR 1830), and amended on December 10, 2007 (72 FR 69723), July 3, 2018 (83 FR 31250-51), and November 1, 2018 (83 FR 54969).
The SSA systems of records used in the match program are include:
• Master Files of SSN Holders and SSN Applications 60-0058, last fully published at 87 FR 263 (January 4, 2022);
• Supplemental Security Income Record and Special Veterans Benefits (SSR) (60-0103), last fully published at 71 FR 1830 (January 11, 2006), and amended at 72 FR 69723 (December 10, 2007), 83 FR. 31250-31251 (July 3, 2018), and 83 FR 54969 (November 1, 2018);
• Master Beneficiary Record (MBR) (60-0090), last fully published at 71 FR 1826 (January 11, 2006), and updated at 72 FR 69723 (December 10, 2007), 78 FR 40542 (July 5, 2013), 83 FR 31250-31251 (July 3, 2018), and 83 FR 54969 (November 1, 2018); and
• Prisoner Update Processing System (PUPS) 60-0269, last fully published at 64 FR 11076 (March 8, 1999), and updated at 72 FR 69723 (December 10, 2007), 78 FR 40542 (July 5, 2013), and 83 FR 54969 (November 1, 2018).
The Unverified Prisoner System (UPS) is a subsystem of PUPS. UPS users perform a manual search of fallout cases where the Enumeration and Verification System is unable to locate an SSN for a noncitizen who has been removed.
The systems of records involved in this computer matching program have routine uses permitting the disclosures needed to conduct this match.
Effective at 12:00 p.m. March 16, 2022, the Embassy of Afghanistan and Afghanistan's consular posts at Beverly Hills, CA and New York, NY formally ceased conducting diplomatic and consular activities in the United States. A protecting power or other agent charged with responsibility for the property of said missions has not been requested, nor approved by the Secretary of State.
In accordance with section 205 (c) of the Foreign Missions Act (22 U.S.C.
In exercise of this custodial responsibility, and pursuant to the authority vested in the Secretary of State by the laws of the United States including the Foreign Missions Act (22 U.S.C. 4301
Tennessee Valley Authority.
60-Day notice of submission of information collection approval and request for comments.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995. The Tennessee Valley Authority is soliciting public comments on this proposed collection.
Comments should be sent to the Public Information Collection Clearance Officer no later than July 18, 2022.
Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Public Information Collection Clearance Officer: Jennifer A. Wilds, Specialist, Records Compliance, Tennessee Valley Authority, 400 W Summit Hill Dr., CLK-320, Knoxville, Tennessee 37902-1401; telephone (865) 632-6580 or by email at
Notice of meeting.
The Federal Aviation Administration (FAA) and the National Park Service (NPS), in accordance with the National Parks Air Tour Management Act of 2000, announce the next meeting of the National Parks Overflights Advisory Group (NPOAG). This notification provides the date, location, and agenda for the meeting.
The NPOAG will meet on June 22-23, 2022. The meeting will take place in the Windsor Conference Room located in the lobby of the Fort Collins Marriott, 350 East Horsetooth Road, Fort Collins, CO 80525. The meeting will be held from 1:00 p.m. to 4:30 p.m. on June 22 and from 8:30 a.m. to 11:30 a.m. p.m. on June 23, 2022. This NPOAG meeting will be open to the public. Because seating is limited, members of the public wishing to attend will need to contact the person listed under
Keith Lusk, AWP-1SP, Special Programs Staff, Federal Aviation Administration, Western-Pacific Region Headquarters, 777 South Aviation Boulevard, Suite 150, El Segundo, CA 92045, telephone: (424) 405-7017, email:
The National Parks Air Tour Management Act of 2000 (NPATMA), enacted on April 5, 2000, as Public Law 106-181, required the establishment of the NPOAG within one year after its enactment. The Act requires that the NPOAG be a balanced group of representatives of general aviation, commercial air tour operations, environmental concerns, and Native American tribes. The Administrator of the FAA and the Director of NPS (or their designees) serve as ex officio members of the group. Representatives of the Administrator and Director serve alternating 1-year terms as chairperson of the advisory group.
The duties of the NPOAG include providing advice, information, and recommendations to the FAA Administrator and the NPS Director on; implementation of Public Law 106-181; quiet aircraft technology; other measures that might accommodate interests to visitors of national parks; and at the request of the Administrator and the Director, on safety, environmental, and other issues related to commercial air tour operations over national parks or tribal lands.
The agenda for the meeting will include, but is not limited to, an update on ongoing park specific air tour management plans or voluntary agreements, status of agency implementation of court approved plan/schedule, update on environmental review process and special purpose law consultations, and public comment review process.
Although this is not a public meeting, interested persons may attend. Because seating is limited, if you plan to attend please contact the person listed under
If you cannot attend the NPOAG meeting, a summary record of the meeting will be made available under the NPOAG section of the FAA ATMP website at:
Department of Transportation, Federal Aviation Administration (FAA).
Notice of submission deadline.
Under this notice, the FAA announces the submission deadline of May 19, 2022, for Winter 2022/2023 flight schedules at Chicago O'Hare International Airport (ORD), John F. Kennedy International Airport (JFK), Los Angeles International Airport (LAX), Newark Liberty International Airport (EWR), and San Francisco International Airport (SFO).
Schedules should be submitted by May 19, 2022.
Schedules may be submitted to the Slot Administration Office by email to:
Al Meilus, Manager, Slot Administration, AJR-G, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-2822; email
This document provides routine notice to carriers serving capacity-constrained airports in the United States, including Chicago O'Hare International Airport (ORD), John F. Kennedy International Airport (JFK), Los Angeles International Airport (LAX), Newark Liberty International Airport (EWR), and San Francisco International Airport (SFO). In particular, this notice announces the deadline for carriers to submit schedules for the Winter 2022/2023 scheduling season. The FAA deadline coincides with the schedule submission deadline established in the International Air Transport Association (IATA) Calendar of Coordination Activities.
The FAA has designated EWR, LAX, ORD, and SFO as IATA Level 2 airports
The FAA is concerned primarily about scheduled and other regularly conducted commercial operations during designated hours, but carriers may submit schedule plans for the entire day. The designated hours for the Winter 2022/2023 scheduling season are: At EWR and JFK from 0600 to 2300 Eastern Time (1100 to 0400 UTC), at LAX and SFO from 0600 to 2300 Pacific Time (1400 to 0700 UTC), and at ORD from 0600 to 2100 Central Time (1200 to 0300 UTC). These hours are unchanged from previous scheduling seasons. The FAA understands there may be differences in schedule times due to U.S. daylight saving time dates and will accommodate these differences to the extent possible.
Carriers should submit schedule information in sufficient detail including, at minimum, the marketing or operating carrier, flight number, scheduled time of operation, frequency, aircraft equipment, and effective dates. IATA standard schedule information format and data elements for communications at Level 2 and Level 3 airports in the IATA Standard Schedules Information Manual (SSIM) Chapter 6 may be used. The WSG provides additional information on schedule submissions at Level 2 and Level 3 airports. Some carriers at JFK manage and track slots through FAA-
As stated in the WSG, schedule facilitation at a Level 2 airport is based on the following: (1) Schedule adjustments are mutually agreed upon between the carriers and the facilitator; (2) the intent is to avoid exceeding the airport's coordination parameters; (3) the concepts of historic precedence and series of slots do not apply at Level 2 airports; although WSG recommends giving priority to approved services that plan to operate unchanged from the previous equivalent season at Level 2 airports, and (4) the facilitator should adjust the smallest number of flights by the least amount of time necessary to avoid exceeding the airport's coordination parameters. Consistent with the WSG, the success of Level 2 in the United States depends on the voluntary cooperation of carriers.
The FAA considers several factors and priorities as it reviews schedule and slot requests at Level 2 and Level 3 airports, which are consistent with the WSG, including—historic slots or services from the previous equivalent season over new demand for the same timings, services that are unchanged over services that plan to change time or other capacity relevant parameters, introduction of year-round services, effective period of operation, regularly planned operations over
Consistent with the limited, conditional extension of COVID-19 related relief for the Winter 2021/2022 scheduling season
Generally, the FAA uses average hourly runway capacity throughput for airports and performance metrics in conducting its schedule review at Level 2 airports and determining the scheduling limits at Level 3 airports included in FAA rules or orders.
Finally, the FAA notes that the schedule information submitted by carriers to the FAA may be subject to disclosure under the Freedom of Information Act (FOIA). The WSG also provides for release of information at certain stages of slot coordination and schedule facilitation. In general, once it acts on a schedule submission or slot request, the FAA may release information on slot allocation or similar slot transactions or schedule information reviewed as part of the schedule facilitation process. The FAA does not expect that practice to change and most slot and schedule information would not be exempt from release under FOIA. The FAA recognizes that some carriers may submit information on schedule plans that is both customarily and actually treated as private. Carriers that submit such confidential schedule information should clearly mark the information, or any relevant portions thereof, as proprietary information (“PROPIN”). The FAA will take the necessary steps to protect properly designated information to the extent allowable by law.
Consistent with the WSG, carriers are asked for their voluntary cooperation to adjust schedules to meet the targeted scheduling limits in order to minimize potential congestion and delay. For the Winter 2022/2023 season, the voluntary, targeted hourly scheduling limit remains at 79 operations and 43 operations per half-hour.
Notwithstanding the targeted limits at EWR previously described, OST and the FAA have decided to reintroduce and reassign 16 peak afternoon and evening runway timings, which were historically approved for operation by Southwest Airlines, Inc. at EWR prior to the carrier's exit from the airport in
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected on the FAA Form 8120-11 is reported voluntarily by manufacturers, repair stations, aircraft owner/operators, air carriers, and the general public who wish to report suspected unapproved parts to the FAA for review. The report information is collected and correlated by the FAA Hotline Program Office, and used to determine if an unapproved part investigation is warranted. When unapproved parts are confirmed that are likely to exist on other products or aircraft of the same or similar design or are being used in other facilities, the information is used as a basis for an aviation industry alert or notification.
Written comments should be submitted by July 18, 2022.
Please send written comments:
Robert Franklin by email at:
Procedures and processes relating to the SUP program and associated reports are found in FAA Order 8120.16A, Suspected Unapproved Parts Program, and Advisory Circular 21-29, Detecting and Reporting Suspected Unapproved Parts. When unapproved parts are identified, the FAA notifies the public by published Field Notifications, disseminated using Unapproved Parts Notifications, Aviation Maintenance Alerts, Airworthiness Directives, entry into an issue of the Service Difficulty Reporting Summary, a Special Airworthiness Information Bulletin, a display on an internet site, or direct mailing. Reporting of information is strictly voluntary. The information is requested from any individual or facility suspecting an unapproved part. Any burden is minimized by requesting only necessary information to warrant an investigation.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests approval to renew the previously approved ICR
Comments on this notice must be received on or before June 17, 2022.
Written comments and recommendations for the information collection should be sent within 30 days of publication of this notice to
Mr. Jeff Secrist, Office of Registration and Safety Information, DOT, FMCSA, West Building 6th Floor, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Telephone: 202-385-2367; email
Estimated annual respondents for Form M decreased from 43 in the previously approved Information Collection Requirement (ICR) to 34 in the current ICR. Estimated annual burden hours for Form M decreased by 78 hours [306 proposed hours−384 currently approved hours = −78 hours]. Estimated annual respondents for Form MP-1 stayed the same. The previously approved ICR had 0 annual hours. The current ICR has 0 annual hours. This estimate is based off the number of Form M and Form MP-1 submissions received by the Agency between 2018 and 2020, which results in these estimates of annual respondents/responses for the upcoming information collection period.
Labor costs to industry have decreased by $2,276 annually [$14,494 in proposed costs − $16,770 currently approved costs = −$2,276]. This is due to the decreased estimates of annual respondents/responses. Other annual costs to respondents (
For the Federal Government, annual costs have increased by $6 [$79 in proposed costs − $73 in previously approved costs = $6]. This increase is due to a revision in the federal government employee load rate, which was revised to be consistent with other FMCSA ICRs.
Section 14123 of title 49 of the United States Code (U.S.C.) requires certain for-hire motor carriers of property, passengers, and household goods to file annual financial reports. The annual reporting program was implemented on December 24, 1938 (3 FR 3158), and it was subsequently transferred from the Interstate Commerce Commission (ICC) to the U.S. Department of Transportation's (DOT) Bureau of Transportation Statistics (BTS) on January 1, 1996. The Secretary of Transportation delegated to BTS the responsibility for the program on December 17, 1996 (61 FR 68162). Responsibility for collection of the reports was transferred from BTS to FMCSA on August 17, 2004 (69 FR 51009), and the regulations were redesignated as 49 CFR part 369 on August 10, 2006 (71 FR 45740). FMCSA collects carriers' annual reports and furnishes copies of the reports when requested under the Freedom of Information Act (FOIA). Annual financial reports are filed on Form M (Class I and II for-hire property carriers, including household goods carriers) and Form MP-1 (Class I for-hire passenger carriers). For-hire motor carriers (including interstate and intrastate) subject to the Federal Motor Carrier Safety Regulations are classified on the basis of their gross carrier operating revenues.
The data and information collected is publicly available through FOIA requests. FMCSA has created electronic forms that may be prepared, signed electronically, and submitted to FMCSA via
Issued under the authority of 49 CFR 1.87.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comments on a renewal of an existing clearance.
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 document describes a collection of
Comments must be submitted on or before June 17, 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 Lacey L. Boyle, Office of Traffic Records and Analysis, Mathematical Analysis Division (NSA-210), 202-366-7468, National Center for Statistics and Analysis, W55-207, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590. Please identify the relevant collection of information by referring to its OMB Control Number (2127-0644).
Under the PRA (44 U.S.C. 3501
A
One individual, Jean Publee, commented against the continuation of the NSUBS. Publee states that NHTSA has collected the NSUBS for years and believes that the data collection should not go on without an end date. Publee states that the NSUBS is a waste of tax dollars. While NHTSA understands Publee's comments, NHTSA believes that the continuation of this data collection is necessary to support NHTSA's mission. The NSUBS is the only probability-based nationwide child restraint use survey in the United States that observes restraint use. Without this survey, NHTSA cannot direct outreach programs where they are most needed.
NHTSA received two comments supporting the continuation of the NSUBS. Safe Kids Worldwide state that it supports the continuation of the NSUBS and uses the information collected from the NSUBS to develop and advocate policy around child safety in cars. SafetyBeltSafe U.S.A. (SBS USA) also shared its support for the continuation of the NSUBS, but stated that in addition to what NSUBS already collects they would like more detailed data reporting. SBS USA mentions that 16 States and DC mandate rear-facing car seats until age 2. SBS USA wants to know if these laws are working in States with these requirements vs. States without these requirements. NHTSA does not collect data in every State and applies sampling weights to produce nationally representative estimates; however NHTSA will consider this suggestion and determine if the current sample design will allow reporting of usage rate based on child restraint laws. SBS USA is concerned about booster seat usages vs. booster seat need especially for children 8- to 12-years old. SBS USA suggests having parents conduct the 5-Step Test on children using seatbelts and record the results. NHTSA appreciates the suggestion and will consider it for the future. At this time, adding the 5-Step Test is out of scope of the NSUBS. NHTSA's purpose in conducting the NSUBS is to assess the extent to which children are prematurely transitioned to restraint types that are inappropriate for their age, height, and weight. The data collectors have a limited amount of time to visually inspect restraint usage and interview drivers, adding the 5-Step Test is time prohibitive. NHTSA does record the age of interviewed children and will consider breaking out data based on the age range of 8-9 and 10-12 as it might give more insight into how older and younger kids in the 8-12 age range are transitioned to different restraint types.
To represent the value of the respondents' time, NHTSA uses the average hourly wage for the United States, which is estimated to be $27.07.
NHTSA estimates that there are no costs to respondents other than opportunity costs associated with the burden hours.
Department of Veterans Affairs.
Notice of solicitation for nominations.
The Department of Veterans Affairs (VA) is seeking nominations of qualified candidates to be considered for appointment to the VA National Academic Affiliations Council (NAAC) (hereinafter in this section referred to as “the NAAC”).
Nominations for membership on the NAAC must be received no later than 5:00 p.m. EST on June 1, 2022.
All nominations should be emailed to
Larissa Emory, PMP, CBP, MS, Designated Federal Officer (DFO), OAA, Veterans Health Administration (VHA) at
The NAAC was established to provide advice and make recommendations to the Secretary of VA on matters affecting partnerships between VA and its academic affiliates. In providing advice to the Secretary and making recommendations on matters affecting partnerships between VA and its academic affiliates, the NAAC carries out the duties set forth and to operate under the provisions of the Federal Advisory Committee Act, as amended 5 U.S.C. app. 2.
The expertise required of the NAAC's membership includes, but is not limited to:
(1) Individuals who are knowledgeable experts with special competence to evaluate and improve the partnership between VA and its academic affiliates.
(2) Individuals representing academic leaders of:
a. Health professions education institutions.
b. Health care industry leaders.
c. Academic and health care leaders with experience in establishing and sustaining academic affiliations and accredited health professions residency and training programs.
(3) Individuals representing National Accrediting or Professional Organizations to include but not limited to Association of American Medical Colleges (AAMC), American Association of Colleges of Pharmacy (AACP), Accreditation Council for Graduate Medical Education (ACGME), American Psychological Association (APA), Physician Assistant Education Association (PAEA), and National Hispanic Medical Association (NHMA).
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications including but not limited to subject matter experts in the areas described above. Nominations should include any relevant information to ensure diverse Committee membership.
Nominations should be typed (one nomination per nominator). Nomination package should include:
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) The nominee's contact information, including name, mailing address, telephone number(s), and email address.
(3) The nominee's resume or curriculum vitae that is no more than three pages in length.
(4) A statement from the nominee attesting that he/she is not a Federal registered lobbyist.
The Department makes every effort to ensure that the membership of VA Federal Advisory Committees is diverse in terms of points of view represented and the committee's capabilities. Appointments to the NAAC shall be made without discrimination because of a person's race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership.
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), and Employment and Training Administration and Wage and Hour Division, U.S. Department of Labor (DOL).
Temporary rule.
The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 2022 authority and again increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by authorizing the issuance of no more than 35,000 additional visas during the second half of FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022, to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. This number is in addition to the 20,000 H-2B visas authorized by the Secretary in consultation with the Secretary of Labor in January of 2022 for petitions with start dates on or before March 31, 2022. In addition to making the additional 35,000 visas available under the FY 2022 time-limited authority, DHS is exercising its general H-2B regulatory authority to again provide temporary portability flexibility by allowing H-2B workers who are already in the United States to begin work immediately after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS, and before it is approved.
You may submit written comments on the new information collection Form ETA-9142B-CAA-6, identified by Regulatory Information Number (RIN) 1205-AC09 electronically by the following method:
Regarding 8 CFR parts 214 and 274a: Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free number).
Regarding 20 CFR part 655 and Form ETA-9142B-CAA-6: Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Ave NW, Room N-5311, Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).
With this temporary final rule (TFR), the Secretary of Homeland Security, following consultation with the Secretary of Labor, is authorizing the immediate release of an additional 35,000 H-2B visas for the second half of FY 2022 positions with start dates on or after April 1, 2022 through September 30, 2022, subject to certain conditions. The 35,000 visas are divided into two allocations, as follows:
• 23,500 visas limited to returning workers, regardless of country of nationality, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2019, 2020, or 2021; and
• 11,500 visas reserved for nationals of El Salvador, Guatemala, and Honduras (Northern Central American countries) and Haiti as attested by the petitioner (regardless of whether such nationals are returning workers).
To qualify for the FY 2022 supplemental cap provided by this
• Meet all existing H-2B eligibility requirements, including obtaining an approved temporary labor certification (TLC) from DOL before filing the Form I-129, Petition for Nonimmigrant Worker, with USCIS;
• Properly file the Form I-129, Petition for Nonimmigrant Worker, with USCIS on or before September 15, 2022, requesting an employment start date on or after April 1, 2022 through September 30, 2022;
• Submit an attestation affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition, and that they are seeking to employ returning workers only, unless the H-2B worker is a Salvadoran, Guatemalan, Honduran, or Haitian national and counted towards the 11,500 cap exempt from the returning worker requirement; and
• Agree to comply with all applicable labor and employment laws, including health and safety laws pertaining to COVID-19, as well as any rights to time off or paid time off to obtain COVID-19 vaccinations,
Employers filing an H-2B petition 30 or more days after the certified start date on the TLC, must attest to engaging in the following additional steps to recruit U.S. workers:
• No later than 1 business day after filing the petition, place a new job order with the relevant State Workforce Agency (SWA) for at least 15 calendar days;
• Contact the nearest American Job Center serving the geographic area where work will commence and request staff assistance in recruiting qualified U.S. workers;
• Contact the employer's former U.S. workers, including those the employer furloughed or laid off beginning on January 1, 2020, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;
• Provide written notification of the job opportunity to the bargaining representative for the employer's employees in the occupation and area of employment, or post notice of the job opportunity at the anticipated worksite if there is no bargaining representative;
• Hire any qualified U.S. worker who applies or is referred for the job opportunity until the later of either (1) the date on which the last H-2B worker departs for the place of employment, or (2) 30 days after the last date of the SWA job order posting; and
• Where the occupation is traditionally or customarily unionized, provide written notification of the job opportunity to the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment, by providing a copy of the job order and requesting assistance in recruiting qualified U.S. workers for the job opportunity.
Petitioners filing H-2B petitions under this FY 2022 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date the TLC was approved, and must provide the documents and records upon the request of DHS or DOL, as well as fully cooperate with any compliance reviews such as audits.
Through audits and investigations, both Departments have received evidence of employer non-compliance with the terms and conditions of the H-2B program, as well as violations of other labor and employment laws. USCIS Fraud Detection and National Security (FDNS) Headquarters found that instances of non-compliance encountered by field USCIS FDNS personnel could be parsed into four areas: (1) Failure to pay the promised wage; (2) failure to demonstrate irreparable harm; (3) failure to employ returning workers; and (4) failure to work at the listed location.
Such non-compliance can harm U.S. workers by undermining wages and working conditions. It also directly harms H-2B workers. Further, H-2B workers depend on ongoing employment with the petitioning employer to maintain status in the United States. This dependence creates a power imbalance between the employer and H-2B worker, making the H-2B worker particularly vulnerable to violations. Recognizing the substantial impact that non-compliance can have on both U.S. workers and H-2B workers, DHS and DOL intend to conduct a significant number of audits focusing on irreparable harm and other worker protection provisions. DHS will also subject employers that have committed labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. This additional scrutiny is aimed at ensuring compliance with H-2B program requirements and obligations.
Specifically, falsifying information in H-2B program attestation(s) can result not only in penalties relating to perjury, but can also result in, among other things, a finding of fraud or willful misrepresentation; denial or revocation of the H-2B petition requesting supplemental workers; and debarment by DOL and DHS from the H-2B program and any other foreign labor programs administered by DOL. Falsifying information also may subject a petitioner/employer to other criminal penalties.
DHS will not approve H-2B petitions filed in connection with the FY 2022 supplemental cap authority on or after October 1, 2022.
In addition to exercising its time-limited authority to make additional FY 2022 H-2B visas available, DHS is again providing additional flexibilities to H-2B petitioners under its general programmatic authority by allowing nonimmigrant workers in the United States
The Immigration and Nationality Act (INA), as amended, establishes the H-2B nonimmigrant classification for a nonagricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot
Finally, under section 101 of HSA, 6 U.S.C. 111(b)(1)(F), a primary mission of DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.”
DHS regulations provide that an H-2B petition for temporary employment in the United States must be accompanied by an approved TLC from the U.S. Department of Labor (DOL), issued pursuant to regulations established at 20 CFR part 655, or from the Guam Department of Labor if the workers will be employed on Guam. 8 CFR 214.2(h)(6)(iii)(A) and (C) through (E), (h)(6)(iv)(A)
In order to determine whether to issue a TLC, the Departments have established regulatory procedures under which DOL certifies whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary nonagricultural worker, and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.
Once the petition is approved, under the INA and current DHS regulations, H-2B workers do not have employment authorization outside of the validity period listed on the approved petition unless otherwise authorized, and the workers are limited to employment with the H-2B petitioner.
The INA also authorizes DHS to impose appropriate remedies against an employer for a substantial failure to meet the terms and conditions of employing an H-2B nonimmigrant worker, or for a willful misrepresentation of a material fact in a petition for an H-2B nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B);
The INA sets the annual number of noncitizens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status to perform temporary nonagricultural work at 66,000, to be distributed semi-annually beginning in October and April.
In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers identified as returning workers from the annual H-2B cap of 66,000.
Because of the strong demand for H-2B visas in recent years, the statutorily-limited semi-annual visa allocation, the DOL regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work,
On March 15, 2022, President Joseph Biden signed the FY 2022 Omnibus which contains a provision, section 204 of Division O, Title II, permitting the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA. Specifically, section 204 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in [FY] 2022 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2022 by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation.
Under the authority contained in section 204, DHS and DOL are jointly publishing this temporary final rule to authorize the issuance of no more than 35,000 additional visas through the end of the second half of FY 2022, to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2022 supplemental cap expires at the end of that fiscal year. Therefore, USCIS will not approve H-2B petitions filed in connection with this FY 2022 supplemental cap authority on or after October 1, 2022.
As noted above, since FY 2017, Congress has enacted a series of public
On May 8, 2019, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 30,000 additional H-2B visas for the remainder of FY 2019. The additional visas were limited to returning workers who had been counted against the H-2B cap or were otherwise granted H-2B status in the previous 3 fiscal years, and for those businesses that attested to a level of need such that, if they did not receive all of the workers requested on the Form I-129, they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.
Although Congress provided the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap in FY 2020, the Secretary did not exercise that authority. DHS initially intended to exercise its authority and, on March 4, 2020, announced that it would make available 35,000 supplemental H-2B visas for the second half of fiscal year.
In FY 2021, although the COVID-19 public health emergency remained in effect, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2021 coupled with additional protections (for example, post-adjudication audits, investigations, and compliance checks), based on the demand for H-2B workers in the second half of FY 2021, as well as other factors that were occurring at that time, including the continuing economic growth, the improving job market, and increased visa processing capacity by the Department of State. Accordingly, on May 25, 2021, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 22,000 additional H-2B visas for the remainder of FY 2021.
Similarly, earlier in FY 2022, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2022 positions with start dates on or before March 31, 2022, based on the demand for H-2B workers in the first half of FY 2022, continuing economic growth, increased labor demand, and increased visa processing capacity by the Department of State. Accordingly, on January 28, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 20,000 additional H-2B visas for the first half of FY 2022.
DHS in consultation with DOL believes that it is appropriate to further increase the H-2B cap through the end of the second half of FY 2022 based on the demand for H-2B workers in the second half of FY 2022, recent and continuing economic growth, increased labor demand,
As we did in FY 2017, FY 2018, FY 2019, FY 2021, and for the first half of FY 2022, DHS and DOL (the Departments) have determined that it is appropriate to jointly issue this temporary final rule.
Following consultation with the Secretary of Labor, the Secretary of Homeland Security has determined that the needs of some U.S. employers cannot be satisfied for the remainder of FY 2022 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with section 204 of the FY 2022 Omnibus, the Secretary of Homeland Security has determined that it is appropriate, for the reasons stated below, to raise the numerical limitation on H-2B nonimmigrant visas through the end of the second half of FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022 up to 35,000 additional visas for those American businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss, without the ability to employ all of the H-2B workers requested on their petition. These businesses must retain documentation, as described below, supporting this attestation.
As we did in connection with the FY 2021 and prior FY2022 H-2B supplemental visa temporary final rules, and consistent with existing authority, DHS and DOL intend to conduct a significant number of audits with respect to petitions filed under this TFR requesting supplemental H-2B visas, which may be selected at the discretion of the Departments, during the period of temporary need to verify compliance with H-2B program requirements, including the irreparable harm standard as well as other key worker protection provisions implemented through this rule. If an employer's documentation does not meet the irreparable harm standard, or if the employer fails to provide evidence demonstrating irreparable harm or comply with the audit process, this may be considered a substantial violation resulting in an adverse agency action on the employer, including revocation of the petition and/or TLC or program debarment. Of the audits completed so far, some audits conducted of employers that received visas under the supplemental caps in FY 2021 and the first half of FY 2022 revealed concerns surrounding documentation of irreparable harm, recruitment efforts, and compliance with the audit process, which may warrant further review and action.
The Secretary of Homeland Security has also again determined, as he did in FY 2021 and earlier in FY 2022, that for certain employers, additional recruitment steps are necessary to confirm that there are no qualified U.S. workers available for the positions. In addition, the Secretary of Homeland Security has determined that the supplemental visas will be limited to returning workers, with the exception that up to 11,500 of the 35,000 visas will be exempt from the returning worker requirement and will be reserved for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, and Haiti.
Similar to the temporary final rules for the FY 2019, FY 2021 and previous FY 2022 supplemental caps, the Secretary of Homeland Security has also determined to limit the supplemental visas to H-2B returning workers, in other words, workers who were issued H-2B visas or were otherwise granted H-2B status in FY 2019, 2020, or 2021,
The Secretary of Homeland Security's determination to increase the numerical limitation is based, in part, on the conclusion that some businesses are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition. Members of Congress have informed the Secretaries of Homeland Security and Labor about the needs of some U.S. businesses for H-2B workers (after the statutory cap for the relevant half of the fiscal year has been reached) and about the potentially negative impact on state and local economies if the cap is not increased.
After considering the full range of evidence and diverse points of view, the Secretary of Homeland Security has deemed it appropriate to take action to prevent further severe and permanent financial loss for those employers currently suffering irreparable harm and to avoid impending irreparable harm for other employers unable to obtain H-2B workers under the statutory cap, including potential wage and job losses by their U.S. workers, as well as other adverse downstream economic effects.
The decision to afford the benefits of this temporary cap increase to U.S. businesses that need H-2B workers because they are suffering irreparable harm already or will suffer impending irreparable harm, and that will comply with additional worker protections, rather than applying the cap increase to any and all businesses seeking temporary workers, is consistent with DHS's time-limited authority to increase the cap, as explained below. The Secretary of Homeland Security, in implementing section 204 and determining the scope of any such increase, has broad discretion, following consultation with the Secretary of Labor, to identify the business needs that are most relevant, while bearing in mind the need to protect U.S. workers. Within that context, for the below reasons, the Secretary of Homeland Security has determined to allow an overall increase of up to 35,000 additional visas, for positions with start dates on or after April 1, 2022 through September 30, 2022, solely for the businesses facing permanent, severe financial loss or those who will face such loss in the near future.
First, DHS interprets section 204's reference to “the needs of American
Second, the approach set forth in this rule limits the increase in a way that is similar to the implementation of the supplemental caps in previous fiscal years, and provides protections against adverse effects on U.S. workers that may result from a cap increase, including, as in previous rules, requiring employers seeking H-2B workers under the supplemental cap to engage in additional recruitment efforts for U.S. workers. Additionally, the Secretary has determined that in the particular circumstances presented here, it is appropriate, within the limits discussed below, to tailor the availability of this temporary cap increase to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, in other words, those facing permanent and severe financial loss.
As noted above, to address the increased and, in some cases, impending need for H-2B workers in positions with start dates on or after April 1, 2022 through September 30, 2022, the Secretary of Homeland Security has determined that employers may petition for supplemental visas on behalf of up to 23,500 workers who were issued an H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021. The last 3 fiscal years' temporal limitation in the returning worker definition in this temporary rule mirrors the temporal limitation Congress imposed in previous returning worker statutes.
Limiting the supplemental cap to returning workers is beneficial because these workers have generally followed immigration law in good faith and demonstrated their willingness to return home when they have completed their temporary labor or services or their period of authorized stay, which is a condition of H-2B status. The returning worker condition therefore provides a basis to believe that H-2B workers under this cap increase will again abide by the terms and conditions of their visa or nonimmigrant status. The returning worker condition also benefits employers that seek to re-hire known and trusted workers who have a proven positive employment track record while previously employed as workers in this country. While the Departments recognize that the returning worker requirement may limit to an extent the flexibility of employers that might wish to hire non-returning workers, the requirement provides an important safeguard against H-2B abuse, which DHS considers to be a significant consideration.
In allocating up to 11,500 H-2B visas to nationals of the Northern Central American countries and Haiti while making the remaining allocation of up to 23,500 H-2B visas available to qualified returning workers, irrespective of their country of nationality, this rule strikes a balance between furthering the U.S. foreign policy interests of creating a comprehensive, whole-of-government framework—of which this allocation is one piece—to address and manage migration from the Northern Central American countries and Haiti and addressing the needs of certain H-2B employers that are suffering irreparable harm or will suffer impending irreparable harm. The United States has strong foreign policy interests in allocating up to 11,500 supplemental visas only to nationals of the Northern Central American countries or Haiti and exempting such persons from the returning worker requirement. The
The exemption from the returning worker requirement recognizes the small numbers of individuals, approximately 4,750 per year, from the three Northern Central American countries and Haiti who were previously granted H-2B visas in recent years.
Finally, like the temporary final rule for the first half of FY 2022 supplemental cap, this rule does
For all petitions filed under this rule and the H-2B program, generally, employers must establish, among other requirements, that insufficient qualified U.S. workers are available to fill the petitioning H-2B employer's job opportunity and that the foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly-employed U.S. workers. INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR 655.1. To meet this standard of protection for U.S. workers and, in order to be eligible for additional visas under this rule, employers must have applied for and received a valid TLC in accordance with 8 CFR 214.2(h)(6)(iv)(A) and (D) and 20 CFR part 655, subpart A. Under DOL's H-2B regulations, TLCs are valid only for the period of employment certified by DOL and expire on the last day of authorized employment. 20 CFR 655.55(a).
In order to have a valid TLC, therefore, the employment start date on the employer's H-2B petition must not be different from the employment start date certified by DOL on the TLC.
In sum, this rule increases the FY 2022 numerical limitation by up to 35,000 visas for positions with start dates on or before September 30, 2022, but also restricts the availability of those additional visas by prioritizing only the most significant business needs, and limiting eligibility to H-2B returning workers, unless the worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 allocation that are exempt from the returning worker limitation. These provisions are each described in turn below.
The increase of up to 35,000 visas will help address the urgent needs of eligible employers for additional H-2B workers for those employers with employment needs for start dates on or before September 30, 2022.
Section 204 of the FY 2022 Omnibus sets the highest number of H-2B returning workers who were exempt from the cap in certain previous years as the maximum limit for any increase in the H-2B numerical limitation for FY 2022.
In past years, the number of beneficiaries covered by H-2B petitions filed exceeded the number of additional visas allocated under recent supplemental caps. In FY 2018, USCIS received petitions for approximately 29,000 beneficiaries during the first 5 business days of filing for the 15,000 supplemental cap. USCIS therefore conducted a lottery on June 7, 2018, to randomly select petitions that would be accepted under the supplemental cap. Of the petitions that were selected, USCIS issued approvals for 15,672 beneficiaries.
Data for the second half of FY 2022 clearly indicate an immediate need for additional supplemental H-2B visas through the end of FY 2022. As of March 31, 2022, DOL's Office of Foreign Labor Certification (OFLC) reports having approved 4,771 TLC applications with requested dates of need in the second half of FY 2022 for 79,947 H-2B workers.
In addition, although the public health emergency due to COVID-19 still exists,
In fiscal year 2021, approximately 88 percent of H-2B filings were for positions within just 5 sectors.
Within these industries, DOL data show increased labor demand over the last year. More specifically, DOL data from the March 29, 2022 Job Openings and Labor Turnover Survey (JOLTS) show that the rate of job openings
The
Other economy-wide data also indicate that labor-market tightness exists. The most recent Employment Situation released by the Bureau of Labor Statistics stated that the unemployment rate decreased to 3.6% in March 2022.
In addition, DOS announced in November 2021 that, as worldwide restrictions due to the COVID-19 pandemic begin to ease, and in line with the President's proclamation regarding the safe resumption of international travel,
Finally, recognizing the high demand for H-2B visas, it is plausible that the additional H-2B supplemental allocations provided in this rule will be reached prior to the end of the fiscal year. Specifically, the following scenarios may still occur:
• The 23,500 supplemental cap visas limited to returning workers that will be immediately available for employers will be reached before September 15, 2022.
• The 11,500 supplemental cap visas limited to nationals of the Northern Central American countries and Haiti will be reached before September 15, 2022.
DHS regulation, 8 CFR 214.2(h)(6)(xii)(E), reaffirms the use of the processes that are in place when H-2B numerical limitations under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10), are reached, as applicable to each of the scenarios described above that involve numerical limitations of the supplemental cap. Specifically, for each of the scenarios mentioned above, DHS will monitor petitions received, and make projections of the number of petitions necessary to achieve the projected numerical limit of approvals. USCIS will also notify the public of the dates that USCIS has received the necessary number of petitions (the “final receipt dates”) for each of these scenarios. The day the public is notified will not control the final receipt dates. Moreover, USCIS may randomly select, via computer-generated selection, from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals for each of the scenarios involving numerical limitations to the supplemental cap. USCIS may, but will not necessarily, conduct a lottery if: The 23,500 supplemental cap visas for returning workers is reached before September 15, 2022; or the 11,500 visas limited to nationals of the Northern Central American countries and Haiti is reached before September 15, 2022. Finally, similar to the processes applicable to the H-2B semi-annual statutory cap, if the final receipt date is any of the first 5 business days on which petitions subject to the applicable numerical limit may be received (in other words, if the numerical limit is reached on any one of the first 5 business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those 5 business days.
Similar to the temporary increases in FY 2019, FY 2021, and the first half of FY 2022 the Secretary of Homeland Security has determined that the supplemental visas should be granted to returning workers from the past 3 fiscal years, in order to meet the immediate need for H-2B workers, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti and is counted towards the separate 11,500 cap for such workers. The Secretary has determined that, for purposes of this program, H-2B returning workers include those individuals who were issued an H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021. As discussed above, the Secretary determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past three fiscal years is appropriate as it mirrors the standard that Congress designated in previous returning worker provisions. Returning workers have previously obtained H-2B visas and therefore been vetted by DOS, would have departed the United States as generally required by the terms of their nonimmigrant admission, and therefore may have a higher likelihood of success in obtaining their new visas through DOS, possibly without a required interview, and begin work more expeditiously.
To ensure compliance with the requirement that additional visas only be made available to returning workers, petitioners seeking H-2B workers under the supplemental cap will be required to attest that each employee requested or instructed to apply for a visa under the FY 2022 supplemental cap was issued an H-2B visa or otherwise granted H-2B status in FY 2019, 2020, or 2021, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti and is counted towards the 11,500 cap. This attestation will serve as prima facie initial evidence to DHS that each worker, unless a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 cap, meets the returning worker requirement. DHS and DOS retain the right to review and verify that each beneficiary is in fact a returning worker any time before and after approval of the petition or visa. DHS has authority to review and verify this attestation during the course of an audit or investigation, as otherwise discussed in this rule.
As described above, the Secretary of Homeland Security has determined that up to 11,500 additional H-2B visas will be limited to workers who are nationals of one of the Northern Central American countries or Haiti. These 11,500 visas will be exempt from the returning worker requirement. If the 11,500 visa limit has been reached and the 23,500 returning worker cap has not, petitioners may continue to request workers who are nationals of one of the Northern Central American countries or Haiti, but these noncitizens must be specifically requested as returning workers who were issued H-2B visas or were otherwise granted H-2B status in FY 2019, 2020, or 2021.
DHS has determined that reserving 11,500 supplemental H-2B visas for nationals of the Northern Central American countries or Haiti—a number higher than the average annual number of visas issued to such persons in the past 7 fiscal years—will encourage U.S. employers that are suffering irreparable harm or will suffer impending irreparable harm to seek out workers from such countries, while, at the same time, increase interest among nationals of the Northern Central American countries and Haiti seeking a legal pathway for temporary employment in the United States. DHS also believes its outreach efforts with the governments of the Northern Central American countries and Haiti, along with efforts in some of these countries by the United States Agency for International Development (USAID) to increase access to the H-2B program, support the decision to provide a higher reservation of H-2B visas for these countries than it has in prior recent TFRs. USAID has worked to build government capacity in Northern Central America to facilitate access to temporary worker visas under the H-2 program. These efforts focus on systematic, orderly, and safe recruitment of workers, engagement with U.S. employers, and strengthening worker protections. In Fiscal Year 2021, USAID increased funding to expand capacity building activities in El Salvador, Guatemala, and Honduras in response to the increased demand generated by the supplemental allocation of 6,000 H-2B visas for Northern Central American nationals included in the FY 2021 TFR. The acceleration of USAID's activities in FY 2021 likely helped increase uptake of H-2B visas issuance under the FY 2021 TFR, as H-2B visa issuances to Salvadorans, Guatemalans and Hondurans exceeded pre-pandemic levels by nearly 40 percent in FY 2021,
DOS issued a combined total of approximately 26,630 H-2B visas to nationals of the Northern Central American countries or Haiti from FY 2015 through FY 2020, an average of approximately 4,400 per year.
While DHS reiterates the importance of limiting the general supplemental cap exclusively to returning workers, for the reasons stated previously, the Secretary has determined that the exemption from the returning worker requirement for nationals of the Northern Central American countries or Haiti is beneficial for the following reasons. It strikes a balance between furthering the U.S. foreign policy interests of expanding access to lawful pathways to nationals of the Northern Central American countries and Haiti seeking economic opportunity in the United States and addressing the needs of certain H-2B employers that are suffering irreparable harm or will suffer impending irreparable harm. This policy initiative would also support the strategies for the region described in E.O. 14010, which directs DHS to implement efforts to expand access to lawful pathways to the United States, including visa programs, as appropriate and consistent with the law through both protection-related and non-protection related programs. E.O. 14010 further directs relevant government agencies to create a comprehensive regional framework to address the causes of migration, and to manage migration throughout North and Central America.
Similar to the discussion above regarding returning workers, DOS will work with the relevant countries to facilitate consular interviews, as required,
Nothing in this rule will limit the authority of DHS or DOS to deny, revoke, or take any other lawful action with respect to an H-2B petition or visa application at any time before or after approval of the H-2B petition or visa application.
To file any H-2B petition under this rule, petitioners must meet all existing H-2B eligibility requirements, including having an approved, valid, and unexpired TLC.
Prior to the first half FY 2022 temporary final rule, petitioners were only required to attest that they were likely to suffer irreparable harm if they were unable to employ all of the H-2B workers requested on their I-129 petition submitted under H-2B cap increase rules. In the previous FY 2022 temporary final rule, the Departments changed the standard to require employers to instead attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition filed under the rule. This change was designed to focus more directly on the actual irreparable harm employers are suffering or the impending irreparable harm they will suffer as a result of their inability to employ H-2B workers, rather than on just the possibility of such harm. This standard will be applied to the instant temporary final rule, and employers will again be required to attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition filed under this rule.
As noted above, Congress authorized the Secretary of Homeland Security, in consultation with the Secretary of Labor, to increase the total number of H-2B visas available “upon the determination that the needs of American businesses cannot be satisfied” with U.S. workers under the statutory visa cap.
The “are suffering irreparable harm or will suffer impending irreparable harm” standard is also informed by the Departments' experiences in implementing the prior business need standard. In the Departments' experiences, the “likely to suffer irreparable harm” standard was difficult to assess and administer in the context of prior supplemental cap rules. For example, employers reported confusion with the standard, including some employers that were not able to provide adequate evidence of the prospective “likelihood of irreparable harm” when selected for an audit. The Departments therefore believe that asking employers to provide evidence of harm, as described in more detail later, that is occurring or is impending without the ability to employ all of the H-2B workers requested on their petition is a better means of ensuring compliance.
The attestation form will serve as prima facie initial evidence to DHS that the petitioner's business is suffering irreparable harm or will suffer impending irreparable harm. Any petition requesting H-2B workers under this FY 2022 supplemental cap that is lacking the requisite attestation form may be rejected in accordance with 8 CFR 103.2(a)(7)(ii) or denied in accordance with 8 CFR 103.2(b)(8)(ii), as applicable. Although this regulation does not require submission of evidence at the time of filing of the petition, other than an attestation, the employer must have such evidence on hand and ready to present to DHS or DOL at any time starting with the date of filing the I-129 petition, through the prescribed
As with petitions filed under the FY 2021 and prior FY 2022 Supplemental TFRs, the Departments intend to select a significant number of petitions approved for audit examination to verify compliance with program requirements, including the irreparable harm standard and recruitment provisions implemented through this rule. Failure to provide evidence demonstrating irreparable harm or to comply with the audit process may be considered a substantial violation resulting in an adverse agency action on the employer, including revocation of the petition and/or TLC or program debarment. Similarly, failure to cooperate with any compliance review, evaluation, verification, or inspection conducted by DHS or DOL as required by 8 CFR 214.2(h)(6)(xii)(B)(
The attestation submitted to USCIS will also state that the employer meets all other eligibility criteria for the available visas, including the returning worker requirement, unless exempt because the H-2B worker is a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 visas reserved for such workers; will comply with all assurances, obligations, and conditions of employment set forth in the
It is the view of the Secretaries of Homeland Security and Labor that requiring a post-TLC attestation to USCIS is the most practical approach, given the time remaining in FY 2022 and the need to assemble the necessary documentation. In addition, the employer is required to retain documentation, which must be provided upon request by DHS or DOL, supporting the new attestations regarding (1) the irreparable harm standard, (2) the returning worker requirement, or, alternatively, documentation supporting that the H-2B worker(s) requested is a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 (which may be satisfied by the separate Form I-129 that employers are required to file for such workers in accordance with this rule), and (3) a recruitment report for any additional recruitment required under this rule for a period of 3 years.
In accordance with the attestation requirements, under which petitioners attest that they meet the irreparable harm standard, that they are seeking to employ only returning workers (unless exempt as described above), and they meet the document retention requirements at new 20 CFR 655.66, the petitioner must retain documents and records fulfilling their responsibility to demonstrate compliance with this rule for 3 years from the date the TLC was approved, and must provide the documents and records upon the request of DHS or DOL. With regard to the irreparable harm standard, employers attesting that they are suffering irreparable harm must be able to provide concrete evidence establishing severe and permanent financial loss that is occurring; the scope and severity of the harm must be clearly articulable. Employers attesting that they will suffer impending irreparable harm must be able to demonstrate that severe and permanent financial loss will occur in the near future without access to the supplemental visas; it will not be enough to provide evidence suggesting that such harm may or is likely to occur; rather, the documentary evidence must show that impending harm will occur and document the form of such harm. Supporting evidence of the attestation may include, but is not limited to, the following types of documentation:
(1) Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss due to the inability to meet financial or existing contractual obligations because they were unable to employ H-2B workers, including evidence of contracts, reservations, orders, or other business arrangements that have been or would be cancelled, and evidence demonstrating an inability to pay debts/bills;
(2) Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss, as compared to prior years, such as financial statements (including profit/loss statements) comparing the employer's period of need to prior years; bank statements, tax returns, or other documents showing evidence of current and past financial condition; and relevant tax records, employment records, or other similar documents showing hours worked and payroll comparisons from prior years to the current year;
(3) Evidence showing the number of workers needed in the previous three seasons (FY 2019, 2020, and 2021) to meet the employer's need as compared to those currently employed or expected to be employed at the beginning of the start date of need. Such evidence must indicate the dates of their employment, and their hours worked (for example, payroll records) and evidence showing the number of H-2B workers it claims are needed, and the workers' actual
(4) Evidence that the petitioner is reliant on obtaining a certain number of workers to operate, based on the nature and size of the business, such as documentation showing the number of workers it has needed to maintain its operations in the past, or will in the near future need, including but not limited to: A detailed business plan, copies of purchase orders or other requests for good and services, or other reliable forecast of an impending need for workers.
(5) With respect to satisfying the returning worker requirement, evidence that the employer requested and/or instructed that each of the workers petitioned by the employer in connection with this temporary rule were issued H-2B visas or otherwise granted H-2B status in FY 2019, 2020, or 2021, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 cap. Such evidence would include, but is not limited to, a date-stamped written communication from the employer to its agent(s) and/or recruiter(s) that instructs the agent(s) and/or recruiter(s) to only recruit and provide instruction regarding an application for an H-2B visa to those foreign workers who were previously issued an H-2B visa or granted H-2B status in FY 2019, 2020, or 2021.
These examples are not exhaustive, nor will they necessarily establish that the business meets the irreparable harm or returning worker standards; petitioners may retain other types of evidence they believe will satisfy these standards. When a petition is selected for audit examination, or investigation, DHS or DOL will review all evidence available to it to confirm that the petitioner properly attested to DHS, at the time of filing the petition, that their business was suffering irreparable harm or would suffer impending irreparable harm, and that they petitioned for and employed only returning workers, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 cap, among other attestations. If DHS subsequently finds that the evidence does not support the employer's attestations, DHS may deny or, if the petition has already been approved, revoke the petition at any time consistent with existing regulatory authorities. DHS may also, or alternatively, refer to DOL for further investigation. In addition, DOL may independently take enforcement action, including by, among other things, debarring the petitioner from the H-2B program for not less than 1 year or more than 5 years from the date of the final agency decision, which also disqualifies the debarred party from filing any labor certification applications or labor condition applications with DOL for the same period set forth in the final debarment decision.
To the extent that evidence reflects a preference for hiring H-2B workers over U.S. workers, an investigation by additional agencies enforcing employment and labor laws, such as the Immigrant and Employee Rights Section (IER) of the Department of Justice's Civil Rights Division, may also be warranted.
DHS, in exercising its statutory authority under INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 204 of the FY 2022 Omnibus, is responsible for adjudicating eligibility for H-2B classification. As in all cases, the burden rests with the petitioner to establish eligibility by a preponderance of the evidence. INA section 291, 8 U.S.C. 1361.
Because of the particular circumstances of this regulation, and because the attestation and other requirements of this rule play a vital role in achieving the purposes of this rule, DHS and DOL intend that the attestation requirement, DOL procedures, and other aspects of this rule be non-severable from the remainder of the rule, including the increase in the numerical allocations.
As an additional option for employers that cannot find U.S. workers, and as an additional flexibility for H-2B employees seeking to begin work with a new H-2B employer, this rule allows petitioners to immediately employ certain H-2B workers who are present in the United States in H-2B status without waiting for approval of the H-2B petition, generally for a period of up to 60 days. Such workers must be beneficiaries of a non-frivolous H-2B petition requesting an extension of stay received on or after July 28, 2022 but no later than 180 days after that date.
The portability provision at new 8 CFR 214.2(h)(28)(iii)(A)(
The portability provision is in part intended to mitigate the harm that petitioners may experience resulting from the continuing COVID-19 pandemic by allowing petitioners to employ such H-2B workers so long as they were lawfully admitted to the United States and if they have not worked unlawfully after their admission. In the context of this rule, DHS believes this flexibility will help some U.S. employers address the challenges related to the limitations imposed by the cap, as well as due to the ongoing disruptions caused by the COVID-19 pandemic.
In addition to resulting in a devastating loss of life, the worldwide pandemic of COVID-19 has impacted the United States in myriad ways, disrupting daily life, travel, and the operation of individual businesses and the economy at large. On January 31, 2020, the Secretary of the U.S. Department of Health and Human Services (HHS) declared a public health emergency dating back to January 27, 2020, under section 319 of the Public Health Service Act (42 U.S.C. 247d).
DOS temporarily suspended routine immigrant and nonimmigrant visa services at all U.S. Embassies and Consulates on March 20, 2020, and subsequently announced a phased resumption of visa services in which it would continue to provide emergency and mission critical visa services and resume routine visa services as local conditions and resources allowed.
Further, due to the possibility that some H-2B workers may be unavailable due to travel restrictions, to include those intended to limit the spread of COVID-19, or visa processing delays or may become unavailable due to COVID-19 related illness, U.S. employers that have approved H-2B petitions or who will be filing H-2B petitions in accordance with this rule might not receive all of the workers requested to fill the temporary positions.
DHS is strongly committed not only to protecting U.S. workers and helping U.S. businesses receive the documented workers authorized to perform temporary nonagricultural services or labor that they need, but also to protecting the rights and interests of H-2B workers (consistent with Executive Order 13563 and in particular its reference to “equity,” “fairness,” and “human dignity”). In the FY 2020 DHS Further Consolidated Appropriations Act (Pub. L. 116-94), Congress directed DHS to provide options to improve the H-2A and H-2B visa programs, to include options that would protect worker rights.
Portability for H-2B workers provides these noncitizens with the option of not having to worry about job loss or loss of income between the time they leave a current employer and while they await approved employment with a new U.S. employer or agent. This flexibility (job portability) seeks to protect H-2B workers and also provide an alternative to H-2B petitioners who have not been able to find U.S. workers and who have not been able to obtain H-2B workers subject to the statutory or supplemental caps who have the skills to perform the job duties. In that sense as well, it is equitable and fair.
DHS is making this flexibility available for an additional 180-day period in order to provide stability for H-2B employers amidst continuing uncertainties surrounding the COVID-19 pandemic. This period is justified especially given the possible future impacts of COVID-19 variants and uncertainty regarding the duration of vaccine-gained immunity and how effective currently approved vaccines will be in responding to future COVID-19 variants.
It is the policy of DHS and its Federal partners to support equal access to the COVID-19 vaccines and vaccine distribution sites, irrespective of an individuals' immigration status.
U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) do not conduct enforcement actions at or near vaccine distribution sites or clinics. Consistent with DHS' protected areas policy, ICE and CBP generally do not carry out enforcement actions in or near protected areas, including at medical or mental healthcare facilities, such as a hospital, doctor's office, health clinic, vaccination or testing site, urgent care center, site that serves pregnant individuals, or community health center.
This TFR reflects that policy by providing as follows:
President Biden, in his speech to Joint Session of Congress on April 21, 2021, made the following statement: “[T]oday, I'm announcing a program to address [the issue of COVID vaccinations] . . . nationwide. I'm calling on every employer, large and small, in every state, to give employees the time off they need, with pay, to get vaccinated and any time they need, with pay, to recover if they are feeling under the weather after the shot.”
As noted, Executive Order 13563 refers to fairness, equity, and human dignity, and such efforts, on the part of employers, would be consistent with those commitments.
Petitioners otherwise are strongly encouraged to facilitate and provide flexibilities, to the greatest extent possible, to all workers who wish to receive COVID-19 vaccinations.
To petition for H-2B workers under this rule, the petitioner must file a Form I-129 in accordance with applicable regulations and form instructions, an unexpired TLC, and the attestation form described above. All H-2B petitions must state the nationality of all the requested H-2B workers, whether named or unnamed, even if there are beneficiaries from more than one country.
Based on the time-limited authority granted to DHS by section 204 of the under the FY 2022 Omnibus, DHS is notifying the public that petitions seeking a visa under this rule may not be approved by USCIS on or after October 1, 2022.
Petitions pending with USCIS that are not approved before October 1, 2022 will be denied and any fees will not be refunded.
DHS believes that 15 days from the end of the fiscal year is the minimum time needed for petitions to be adjudicated, although USCIS cannot guarantee the time period will be sufficient in all cases. Therefore, even if the supplemental allocations provided in this rule have not yet been reached, USCIS will stop accepting petitions received after September 15, 2022.
Petitioners may choose to request premium processing of their petitions under 8 CFR 103.7(e), which allows for expedited processing for an additional fee.
As noted above, all employers are required to have an approved and valid TLC from DOL in order to file a Form I-129 petition with DHS.
The H-2B regulations require that, among other things, an employer seeking to hire H-2B workers in a non-emergency situation must file a completed Application for Temporary Employment Certification with the National Processing Center (NPC) designated by the OFLC Administrator no more than 90 calendar days and no fewer than 75 calendar days before the employer's date of need (
Under 20 CFR 655.17, an employer may request a waiver of the time period(s) for filing an Application for Temporary Employment Certification based on “good and substantial” cause, provided that the employer has sufficient time to thoroughly test the domestic labor market on an expedited basis and the OFLC certifying officer (CO) has sufficient time to make a final determination as required by the regulation. To rely on this provision, as the Departments explained in the 2015 H-2B Interim Final Rule, the employer must provide the OFLC CO with detailed information describing the “good and substantial cause” necessitating the waiver. Such cause may include the substantial loss of U.S. workers due to Acts of God, or a similar unforeseeable human-made catastrophic event that is wholly outside the employer's control, unforeseeable changes in market conditions, or pandemic health issues. Thus, to ensure an adequate test of the domestic labor market and to protect the integrity of the H-2B program, the Departments clearly intended that use of emergency procedures must be narrowly construed and permitted in extraordinary and unforeseeable catastrophic circumstances that have a direct impact on the employer's need for the specific services or labor to be performed. Even under the existing H-2B statutory visa cap structure, DOL considers USCIS' announcement(s) that the statutory cap(s) on H-2B visas has been reached, which may occur with regularity every six months depending on H-2B visa need, as foreseeable, and therefore not within the meaning of “good and substantial cause” that would justify a request for emergency procedures. Accordingly, employers cannot rely solely on the supplemental H-2B visas made available through this rule as good and substantial cause to use emergency procedures under 20 CFR 655.17.
In addition to the recruitment already conducted in connection with a valid TLC, in order to ensure the recruitment has not become stale, employers that wish to obtain visas for their workers under 8 CFR 214.2(h)(6)(xii), and who file an I-129 petition 30 or more days after the certified start date of work on the TLC must conduct additional recruitment for U.S. workers. This is particularly important as U.S. workers continue to reenter the workforce as they become vaccinated and boosted. As noted in the 2015 H-2B Interim Final Rule, U.S. workers seeking employment in temporary or seasonal nonagricultural jobs typically do not search for work months in advance, and cannot make commitments about their availability for employment far in advance of the work start date.
In order to provide U.S. workers a realistic opportunity to pursue jobs for which employers will be seeking foreign workers under this rule, the Departments have determined that if employers file an I-129 petition 30 or more days after their dates of need, they have not conducted recruitment recently enough for the DOL to reasonably conclude that there are currently an insufficient number of U.S. workers who are qualified, willing, and available to perform the work absent taking additional, positive recruitment steps. In previous rules, the Departments had set the point at which new recruitment must be conducted as being when an I-129 petition was filed 45 or more days after the approved date of need. Under this 45-day requirement, recruitment would have concluded 66 or more days prior to the filing of the I-129 petition as employers do not have an obligation to provide employment to U.S. workers 21 days before the start date of need and 45 or more days would have transpired after this date of need. After careful consideration, the Departments have determined that recruitment which concluded 66 or more days (
We also believe this change is in keeping with the intent of the 45-day requirement in the previous TFRs. Those rules have generally published in late May, meaning all visa petitions with an April 1 start date were filed with USCIS more than 45 days after the certified start date of need and additional recruitment would have been required. The economic analysis for this and the two previous TFRs assumed the number of employers that would need to conduct additional recruitment would be equal to the total number of anticipated filers for each TFR.
An employer that files an I-129 petition under 8 CFR 214.2(h)(6)(xii) fewer than 30 days after the certified start date of work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-6, but is not required to conduct recruitment for U.S. workers beyond the recruitment already conducted as a condition of certification. Only those employers with still-valid TLCs with a start date of work that is 30 or more days before the date they file a petition will be required to conduct recruitment in addition to that conducted prior to being granted labor certification and attest that the recruitment will be conducted, as follows.
Employers that are required to engage in additional recruitment must place a new job order for the job opportunity with the State Workforce Agency (SWA) serving the area of intended employment no later than the next business day after submitting an I-129 petition for H-2B workers to USCIS, and inform the SWA that the job order is being placed in connection with a previously submitted and certified Application for Temporary Employment Certification for H-2B workers by providing the SWA with the unique OFLC TLC case number.
The new job order must contain the job assurances and contents set forth in 20 CFR 655.18 for recruitment of U.S. workers at the place of employment, and remain posted for at least 15 calendar days. The employer must also follow all applicable SWA instructions for posting job orders and receive applications in all forms allowed by the SWA, including online applications. The Departments have concluded that keeping the job order posted for a period of 15 calendar days, during the period the employer is conducting the additional recruitment steps explained below, will effectively ensure U.S. workers are apprised of the job opportunity and are referred for employment, if they are willing, qualified, and available to perform the work. The 15 calendar day period also is consistent with the employer-conducted recruitment activity period applicable under 20 CFR 655.40(b).
Once the SWA places the new job order on its public labor exchange system, the SWA will perform its normal employment service activities by circulating the job order for intrastate clearance, and in interstate clearance by providing a copy of the job order to other SWAs with jurisdiction over listed worksites as well as those States the OFLC CO designated in the original Notice of Acceptance issued under 20 CFR 655.33. Where the occupation or industry is traditionally or customarily unionized, the SWA will also circulate a copy of the new job order to the central office of the State Federation of Labor in the State(s) in which work will be performed, and the office(s) of local union(s) representing workers in the same or substantially equivalent job classification in the area(s) in which work will be performed, consistent with its current obligation under 20 CFR 655.33(b)(5). To facilitate an effective dissemination of these job opportunities, DOL encourages union(s) or hiring halls representing workers in occupations typically used in the H-2B program to proactively contact and establish partnerships with SWAs in order to obtain timely information on available temporary job opportunities. This will aid the SWAs' prompt and effective outreach under the rule. DOL's OFLC maintains a comprehensive directory of contact information for each SWA at
The employer also must conduct additional recruitment steps during the period of time the SWA is actively circulating the job order for intrastate clearance. First, the employer must contact, by email or other electronic means, the nearest American Job Center(s) (AJC) serving the area of intended employment where work will commence to request staff assistance to advertise and recruit U.S. workers for the job opportunity. AJCs bring together a variety of programs providing a wide range of employment and training services for U.S. workers, including job search services and assistance for prospective workers and recruitment services for employers through the Wagner-Peyser Program. Therefore, AJCs can offer assistance to employers with recruitment of U.S. workers, and contact with local AJCs will facilitate contemporaneous and effective recruitment activities that can broaden dissemination of the employer's job opportunity through connections with other partner programs within the One-Stop System to locate qualified U.S. workers to fill the employer's labor need. For example, the local AJC, working in concert with the SWA, can coordinate efforts to contact community-based organizations in the geographic area that serve potentially qualified workers or, when a job opportunity is in an occupation or industry that is traditionally or customarily unionized, the local AJC may be better positioned to identify and circulate the job order to appropriate local union(s) or hiring hall(s), consistent with 20 CFR 655.33(b)(5). In addition, as a partner program in the One-Stop System, AJCs are connected with the State's unemployment insurance program, thus an employer's connection with the AJC will help facilitate knowledge of the job opportunity to U.S. workers actively seeking employment. When contacting the AJC(s), the employer must provide staff with the job order number or, if the job order number is unavailable, a copy of the job order.
To increase navigability and to make the process as convenient as possible, DOL offers an online service for employers to locate the nearest local AJC at
Second, during the period of time the SWA is actively circulating the job order described in paragraph (a)(5)(i) of new 20 CFR 655.65 for intrastate clearance, the employer must make reasonable efforts to contact (by mail or other effective means) its former U.S. workers that it employed in the occupation at the place of employment (except those who were dismissed for cause or who abandoned the worksite) during the period beginning January 1, 2020, until the date the I-129 petition required under 8 CFR 214.2(h)(6)(xii) is submitted. Among the employees the employer must contact are those who have been furloughed or laid off during this period. The employer must disclose to its former employees the terms of the job order, and solicit their return to the job. The contact and disclosures required by this paragraph must be provided in a language understood by the worker, as necessary or reasonable.
Furloughed employees are employees the employer laid off (as the term is defined in 20 CFR 655.5 and 29 CFR 503.4), but the layoff is intended to last for a temporary period of time. This recruitment step will help ensure notice of the job opportunity is disseminated broadly to U.S. workers who were laid off or furloughed during the COVID-19 outbreak and who may be seeking employment as the economy continues to recover and as more people are vaccinated. While this requirement goes beyond the requirement at 20 CFR 655.43, the Departments believe it is appropriate given the evolving conditions of the U.S. labor market, as described above, and the increased likelihood that qualified U.S. workers will make themselves available for these job opportunities.
Third, as the employer was required to do when initially applying for its labor certification, the employer must provide a copy of the job order to the bargaining representative for its employees in the occupation and area of intended employment, consistent with 20 CFR 655.45(a), or if there is no bargaining representative, post the job order in the places and manner described in 20 CFR 655.45(b).
When a job is in a traditionally or customarily unionized occupation or industry and during the time the SWA is actively circulating the job order, the employer must affirmatively contact the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment to provide written notice of the job opportunity and request assistance in recruiting qualified U.S. workers who may be interested in applying for the job opportunity. The employer must provide the AFL-CIO office (by mail, email, or other effective written means) a copy of the job order placed with the SWA. To determine which occupations are traditionally or customarily unionized, and to obtain information about the proper AFL-CIO office to contact,
When applicable, the employer must include information in its recruitment report confirming that the AFL-CIO office was contacted and notified in writing of the job opportunity or opportunities. In the recruitment report, the employer must state whether the nearest AFL-CIO office referred qualified U.S. worker(s), including the number of referrals, or indicate that it was non-responsive to the employer's requests. The employer must retain all documentation establishing that it has contacted the AFL-CIO office and submit all such information upon request from the Departments. Documentation or evidence that would help employers establish that the appropriate AFL-CIO office was contacted, may include, but is not limited to: Documentation proving the job order was shipped and delivered to the AFL-CIO office (
We believe the requirement that employers contact the AFL-CIO in occupations or industries that are traditionally or customarily unionized will complement the requirement that SWAs circulate the job order to the State Federation of Labor and local unions in such situations, thereby increasing the likelihood that a U.S. worker will be recruited for the job opportunity. This is because in traditionally or customarily unionized industries and occupations,
The requirements to contact former U.S. workers and provide notice to the bargaining representative or post the job order must be conducted in a language understood by the workers, as necessary or reasonable. This requirement would apply, for example, in situations where an employer has one or more employees who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English. This requirement would allow those workers to make informed decisions regarding the job opportunity, and is a reasonable interpretation of the recruitment requirements in 20 CFR part 655, subpart A, in light of the need to ensure that the test of the U.S. labor market is as comprehensive as possible. Consistent with existing language requirements in the H-2B program under 20 CFR 655.20(l), DOL intends to broadly interpret the necessary or reasonable qualification, and apply an exemption only in those situations where having the job order translated into a particular language would both place an undue burden on an employer and not significantly disadvantage the employee.
The employer must hire any qualified U.S. worker who applies or is referred for the job opportunity until either (1) the date on which the last H-2B worker departs for the place of employment, or (2) 30 days after the last date on which the SWA job order is posted, whichever is later. Additionally, consistent with 20 CFR 655.40(a), applicants may be rejected only for lawful job-related reasons. Given that the employer, SWA, and AJC(s) will be actively engaged in conducting recruitment and broader dissemination of the job opportunity during the period of time the job order is active, this requirement provides an adequate period of time for U.S. workers to contact the employer or SWA for referral to the employer and completion of the additional recruitment steps described above. As explained above, the Departments have determined that if employers file a petition 30 or more days after their dates of need, they have not conducted recruitment recently enough for the Departments to reasonably conclude that there are currently an insufficient number of U.S. workers qualified, willing, and available to perform the work absent additional recruitment.
Because of the abbreviated timeline for the additional recruitment required for employers whose initial recruitment has gone stale, the Departments have determined that a longer hiring period is necessary to approximate the hiring period under normal recruitment procedures and ensure that domestic workers have access to these job opportunities, consistent with the Departments' mandate. Additionally, given the relatively brief period during which additional recruitment will occur, additional time may be necessary for U.S. workers to have a meaningful opportunity to learn about the job opportunities and submit applications.
The Departments remind all H-2B employers of the requirement to engage in non-discriminatory hiring practices and that the job opportunity is, and through the recruitment period set forth in this rule must continue to be, open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, disability, or citizenship, as specified under 20 CFR 655.20(r). Further, employers that wish to require interviews must conduct those interviews by phone or provide a procedure for the interviews to be conducted in the location where the worker is being recruited so that the worker incurs little or no cost. Employers cannot provide potential H-2B workers with more favorable treatment with respect to the requirement for, and conduct of, interviews.
Any U.S. worker who applies or is referred for the job opportunity and is not considered by the employer for the job opportunity, experiences difficulty accessing or understanding the materials terms and conditions of the job opportunity, or believes they have been improperly rejected by the employer may file a complaint directly with the SWA serving the area of intended employment. Each SWA maintains a complaint system for public labor exchange services established under 20 CFR part 658, subpart E, and any complaint filed by, or on behalf of, a U.S. worker about a specific H-2B job order will be processed under this existing complaint system. Depending on the circumstances, the SWA may seek informal resolution by working with the complainant and the employer to resolve, for example, miscommunications with the employer to be considered for the job opportunity or other concerns or misunderstandings related to the terms and conditions of the job opportunity. In other circumstances, such as allegations involving discriminatory hiring practices, the SWA may need to formally enter the complaint and refer the matter to an appropriate enforcement agency for prompt action. As mentioned above, DOL's OFLC maintains a comprehensive directory of contact information for each SWA that can be used to obtain more information on how to file a complaint.
Although the hiring period may require some employers to hire U.S. workers after the start of the contract period, this is not unprecedented. For example, in the H-2A program, employers have been required to hire U.S. workers through 50 percent of the contract period since at least 2010, which “enhance[s] protections for U.S. workers, to the maximum extent possible, while balancing the potential
As in the temporary rules implementing the supplemental cap increases in prior years, employers must retain documentation demonstrating compliance with the recruitment requirements described above, including placement of a new job order with the SWA, contact with AJCs, contact with the bargaining representative or AFL-CIO when required, contact with former U.S. workers, and compliance with § 655.45(a) or (b). Employers must prepare and retain a recruitment report that describes these efforts and meets the requirements set forth in 20 CFR 655.48, including the requirement to update the recruitment report throughout the recruitment and hiring period set forth in paragraph (a)(5)(v) of new 20 CFR 655.65. Employers must maintain copies of the recruitment report, attestation, and supporting documentation, as described above, for a period of 3 years from the date that the TLC was approved, consistent with the document retention requirements under 20 CFR 655.56. These requirements are similar to those that apply to certain seafood employers that stagger the entry of H-2B workers under 20 CFR 655.15(f).
DOL's WHD has the authority to investigate the employer's attestations, as the attestations are a required part of the H-2B petition process under this rule and the attestations rely on the employer's existing, approved TLC. Where a WHD investigation determines that there has been a willful misrepresentation of a material fact or a substantial failure to meet the required terms and conditions of the attestations, WHD may institute administrative proceedings to impose sanctions and remedies, including (but not limited to) assessment of civil money penalties; recovery of wages due; make-whole relief for any U.S. worker who has been improperly rejected for employment, laid off, or displaced; make-whole relief for any person who has been discriminated against; and/or debarment for 1 to 5 years.
DHS has the authority to verify any information submitted to establish H-2B eligibility at any time before or after the petition has been adjudicated by USCIS.
DOL's OFLC already has the authority under 20 CFR 655.70 to conduct audit examinations on adjudicated Applications for Temporary Employment Certification, including all appropriate appendices, and verify any information supporting the employer's attestations. OFLC uses audits of adjudicated Applications for Temporary Employment Certification, as authorized by 20 CFR 655.70, to ensure employer compliance with attestations made in its Application for Temporary Employment Certification and to ensure the employer has met all statutory and regulatory criteria and satisfied all program requirements. The OFLC CO has sole discretion to choose which Applications for Temporary Employment Certification will be audited.
Under this rule, an employer may submit a petition to USCIS, including a valid TLC and Form ETA-9142B-CAA-6, in which the employer attests to compliance with requirements for access to the supplemental H-2B visas allocated through 8 CFR 214.2(h)(6)(xii), including that its business is suffering irreparable harm or will suffer impending irreparable harm, and that it will conduct additional recruitment, if necessary to refresh the TLC's labor market test. DHS and DOL consider Form ETA-9142B-CAA-6 to be an appendix to the Application for Temporary Employment Certification and the attestations contained on the Form ETA-9142B-CAA-6 and documentation supporting the attestations to be evidence that is incorporated into and a part of the approved TLC. Therefore, DOL's audit authority includes the authority to audit
In accordance with the documentation retention requirements in this rule, the petitioner must retain documents and records proving compliance with this rule, and must provide the documents and records upon request by DHS or DOL. Under this rule, DOL will audit a significant number of TLCs used to access the supplemental visa allocation to ensure employer compliance with attestations, including those regarding the irreparable harm standard and additional employer conducted recruitment, required under this rule. In the event of an audit, the OFLC CO will send a letter to the employer and, if appropriate, a copy of the letter to the employer's attorney or agent, listing the documentation the employer must submit and the date by which the documentation must be sent to the CO. During audits under this rule, the CO will request documentation necessary to demonstrate the employer conducted all recruitment steps required under this rule and truthfully attested to the irreparable harm the employer was suffering or would suffer in the near future without the ability to employ all of the H-2B workers requested under the cap increase, including documentation the employer is required to retain under this rule. If necessary to complete the audit, the CO may request supplemental information and/or documentation from the employer during the course of the audit process. 20 CFR 655.70(c).
Failure to comply in the audit process may result in the revocation of the employer's certification or in debarment, under 20 CFR 655.72 and 655.73, respectively, or require the employer to undergo assisted recruitment in future filings of an Application for Temporary Employment Certification, under 20 CFR 655.71. Where an audit examination or review of information from DHS or other appropriate agencies determines that there has been fraud or willful misrepresentation of a material fact or a substantial failure to meet the required terms and conditions of the attestations or failure to comply with the audit examination process, OFLC may institute appropriate administrative proceedings to impose sanctions on the employer. Those sanctions may result in revocation of an approved TLC, the requirement that the employer undergo assisted recruitment in future filings of an Application for Temporary Employment Certification for a period of up to 2 years, and/or debarment from the H-2B program and any other foreign labor certification program administered by DOL for 1 to 5 years.
Petitioners must also comply with any other applicable laws, such as avoiding unlawful discrimination against U.S. workers based on their citizenship status or national origin. Specifically, the failure to recruit and hire qualified and available U.S. workers on account of such individuals' national origin or citizenship status may violate INA section 274B, 8 U.S.C. 1324b.
This rule is issued without prior notice and opportunity to comment and with an immediate effective date pursuant to the Administrative Procedure Act (APA). 5 U.S.C. 553(b) and (d).
The APA, 5 U.S.C. 553(b)(B), 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.” Among other things, the good cause exception for forgoing notice and comment rulemaking “excuses notice and comment in emergency situations, or where delay could result in serious harm.”
With respect to the supplemental allocations provisions in 8 CFR 214.2 and 20 CFR part 655, subpart A, as explained above, the Departments are acting to give effect to the supplemental cap authority in
USCIS received more than enough petitions to meet the H-2B visa statutory cap for the first half of FY 2022 on September 30, 2021,
The temporary portability and change of employer provisions in 8 CFR 214.2 and 274a.12 are further supported by conditions created by the COVID-19 pandemic. On January 31, 2020, the Secretary of Health and Human Services declared a public health emergency under section 319 of the Public Health Service Act in response to COVID-19 retroactive to January 27, 2020.
Travel restrictions have also changed over time as the pandemic has continued to evolve. On October 25, 2021, the President issued Proclamation 10294,
On November 26, 2021, the President issued another Proclamation suspending the entry into the United States, of immigrants or nonimmigrants, of noncitizens who were physically present within certain Southern African countries during the 14-day period preceding their entry or attempted entry into the United States.
In addition to travel restrictions and impacts of the pandemic on visa services, as discussed elsewhere in this rule, current efforts to curb the pandemic in the United States and worldwide have been partially successful. DHS anticipates that H-2B employers may need additional flexibilities, beyond supplemental visa numbers, to meet all of their labor needs, particularly if some U.S. and H-2B workers become unavailable due to illness or other restrictions related to the spread of COVID-19. Therefore, DHS is acting expeditiously to temporarily allow job portability for H-2B workers that will facilitate the continued employment of H-2B workers already present in the United States. This action will help employers fill these critically necessary nonagricultural job openings and protect U.S. businesses' economic investments in their operations.
Courts have found “good cause” under the APA when an agency is moving expeditiously to avoid significant economic harm to a program, program users, or an industry. Courts have held that an agency may use the good cause exception to address “a serious threat to the financial stability of [a government] benefit program,”
Consistent with the above authorities, the Departments are bypassing notice and comment to prevent “serious economic harm to the H-2B community,” including U.S. employers, associated U.S. workers, and related professional associations, that could result from ongoing uncertainty over the status of the numerical limitation, in other words, the effective termination of the program through the remainder of FY 2022.
The APA also authorizes agencies to make a rule effective immediately, upon a showing of good cause, instead of imposing a 30-day delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day effective date requirement is easier to meet than the good cause exception for foregoing notice and comment rulemaking.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary and to the extent permitted by law, to proceed only if the benefits justify the costs and to select the regulatory approach that maximizes net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits; reducing costs; simplifying and harmonizing rules; and promoting flexibility through approaches that preserve freedom of choice (including through “provision of information in a form that is clear and intelligible”). It also allows consideration of equity, fairness, distributive impacts, and human dignity, even if some or all of these are difficult or impossible to quantify.
The Office of Information and Regulatory Affairs has determined that this rule is a “significant regulatory action,” although not an economically significant regulatory action. Accordingly, the Office of Management and Budget has reviewed this regulation.
With this temporary final rule (TFR), DHS is authorizing the immediate release of an additional 35,000 H-2B visas. By the authority given under section 204 of the Consolidated Appropriations Act, 2022, Public Law 117-103 (FY 2022 Omnibus), DHS is raising the H-2B cap by an additional 35,000 visas during FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022 to businesses that: (1) Show that there are an insufficient number of U.S. workers to meet their needs in the second half of FY 2022; (2) attest that their businesses are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition; and (3) petition for returning workers who were issued an H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti. Additionally, up to 11,500 of the 35,000 visas may be granted to workers from the Northern Central American countries and Haiti who are exempt from the returning worker requirement. This TFR aims to prevent irreparable harm to certain U.S. businesses by allowing them to hire additional H-2B workers within FY 2022.
The estimated total costs to petitioners range from $22,107,261 to $24,255,601. This includes $12,702,940 in filing fees which are also transfers from the petitioners to USCIS to cover the full costs to USCIS related to new petitions. The estimated total cost to the Federal Government is $333,774. Therefore, DHS estimates that the total cost of this rule ranges from $22,441,035 to $24,589,375. The benefits of this rule are diverse, though some of them are difficult to quantify. They include:
(1) Employers benefit from this rule significantly through increased access to H-2B workers;
(2) Customers and others benefit directly or indirectly from that increased access;
(3) H-2B workers benefit from this rule significantly through obtaining jobs and earning wages, potential ability to port and earn additional wages, and increased information on COVID-19 and vaccination distribution. DHS recognizes that some of the effects of these provisions may occur beyond the borders of the United States;
(4) Some American workers may benefit to the extent that they do not lose jobs through the reduced or closed business activity that might occur if fewer H-2B workers were available;
(5) The existence of a lawful pathway, for the 11,500 visas set aside for new workers from Guatemala, Honduras, El Salvador, and Haiti, is likely to provide multiple benefits in terms of U.S. policy with respect to the Northern Central American countries and Haiti; and
(6) The Federal Government benefits from increased evidence regarding attestations. Table 1 provides a summary of the provisions in this rule and some of their impacts.
The H-2B visa classification program was designed to serve U.S. businesses that are unable to find enough U.S. workers to perform nonagricultural work of a temporary or seasonal nature. For a nonimmigrant worker to be admitted into the United States under this visa classification, the hiring employer is required to: (1) Receive a temporary labor certification (TLC) from the Department of Labor (DOL); and (2) file Form I-129 with DHS. The temporary nature of the services or labor described on the approved TLC is subject to DHS review during adjudication of Form I-129.
On March 15, 2022, the President signed the FY 2022 Omnibus that contains a provision (Sec. 204 of Div. O) permitting the Secretary of Homeland Security, under certain circumstances, to increase the number of H-2B visas available to U.S. employers, notwithstanding the established statutory numerical limitation. After consulting with the Secretary of Labor, the Secretary of the Homeland Security has determined it is appropriate to exercise his discretion and raise the H-2B cap by up to 35,000 visas for FY 2022 positions with start dates on or before September 30, 2022, for those businesses who would qualify under certain circumstances.
These businesses must attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested on their petition. The Secretary has determined that up to 23,500 of the 35,000 these supplemental visas will be limited to specified H-2B returning workers for nationals of any country. Specifically, these individuals must be workers who were issued H-2B visas or were otherwise granted H-2B status in fiscal years 2019, 2020, or 2021. The Secretary has also determined that up to 11,500 of the 35,000 additional visas will be reserved for workers who are nationals of Guatemala, Honduras, El Salvador, and Haiti, and that these 11,500 workers will be exempt from the returning worker requirement. Once the 11,500 visa limit has been reached, a petitioner may continue to request H-2B visas for workers who are nationals of Guatemala, Honduras, El Salvador, and Haiti but these workers must be returning workers.
This rule would affect those employers that file Form I-129 on behalf of nonimmigrant workers they seek to hire under the H-2B visa program. More specifically, this rule would affect those employers that can establish that their business is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested on their petition and without the exercise of authority that is the subject of this rule. Due to the temporary nature of this rule and the limited time left for employers to begin the H-2B filing process for positions with FY 2022 employment start dates on or before September 30, 2022,
This rule would also have additional impacts on the population of H-2B employers and workers presently in the United States by permitting some H-2B workers to port to another certified employer. These H-2B workers would continue to earn wages and gaining employers would continue to obtain necessary workers.
According to DOL OFLC's certification data for FY 2022, as of March 31, 2022, about 9,359 TLCs for 154,525 H-2B positions were received with expected work start dates between April 1, 2022 and September 30, 2022. DOL OFLC has approved 4,771 certifications for 79,947 H-2B positions and is still reviewing 3,804 TLC requests for 60,295 H-2B positions. DOL OFLC has denied, withdrawn, rejected, or returned 784 certifications for 14,283 H-2B positions.
Calculation for beneficiaries: 79,947 approved TLC positions + 60,295 pending TLC positions + 1,200 expected TLC positions = 141,442 total estimated TLC positions.
Of the estimated total 8,650 certified Applications for Temporary Employment Certification, USCIS data shows that 2,346 H-2B petitions for 39,254 positions with approved certifications were already filed toward the first semi-annual cap of 33,000 visas.
If a lawyer or accredited representative submits Form I-129 on behalf of the petitioner, Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, must accompany the Form I-129 submission.
Calculation: 6,304 estimated additional petitions−2,801 petitions filed by a lawyer = 3,503 petitions filed by an HR specialist.
Employers may use Form I-907, Request for Premium Processing Service, to request faster processing of their Form I-129 petitions for H-2B visas. Table 3 shows the percentage of Form I-129 H-2B petitions that were filed with a Form I-907. Using data from FY 2017 to FY 2021, USCIS estimates that approximately 93.67 percent of Form I-129 H-2B petitioners will file a Form I-907 requesting premium processing, though this could be higher because of the timing of this rule. Based on this historical data, USCIS estimates that 5,905 Forms I-907 will be filed with the Forms I-129 as a result of this rule.
Calculation: 5,905 additional Form I-907−2,624 additional Form I-907 filed by a lawyer = 3,281 additional Form I-907 filed by an HR specialist.
Petitioners seeking to take advantage of this FY 2022 H-2B supplemental visa cap will need to file a Form ETA-9142-B-CAA-6 attesting that their business is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested on the petition, comply with third party notification, and maintain required records, among other requirements. DOL estimates that each of the 6,304 petitions will need to be accompanied by Form ETA-9142-B-CAA-6 and petitioners filing these petitions and attestations will need to comply with its provisions.
The population affected by this provision are nonimmigrants in H-2B status who are present in the United States and the employers with valid TLCs seeking to hire H-2B workers. We use the population of 66,000 H-2B workers authorized by statute, the 20,000 additional H-2B workers authorized by the previous supplemental cap, and the 35,000 additional H-2B workers authorized by this regulation as a proxy for the H-2B population that could be currently present in the United States.
In FY 2021, the first year a H-2B supplemental cap included a portability provision, there were 1,114 Forms I-129 filed for extension of stay due to change of employer compared to 7,206 Forms I-129 filed for new employment.
Calculation, Step 2: 7,206 Form I-129 petitions filed for new employment in FY 2021 + 3,062 Form I-129 petitions filed for new employment in FY 2022 as of March 31, 2022 = 10,268 Form I-129 petitions filed for new employment in portability provision years.
Calculation, Step 3: 1,728 extension of stay due to change of employment petitions/10,268 new employment petitions = 16.8 percent rate of extension of stay due to change of employment to new employment.
Calculation, HR specialist: 545 additional Form I-129 due to portability provision −242 estimated Form I-129 filed by a lawyer = 303 estimated Form I-129 filed by an HR specialist.
Calculation, HR specialists: 511 Forms I-907−227 Forms I-907 filed by a lawyer = 284 Forms I-907 filed by an HR specialist.
Under this time-limited FY 2022 H-2B supplemental cap rule, DHS intends to conduct 250 audits of employers hiring H-2B workers and DOL intends to conduct 100 audits of employers hiring H-2B workers. The determination of which employers are audited will be done at the discretion of the Departments, though the agencies will coordinate so that no employer is audited by both DOL and DHS. Therefore, a total of 350 audits on employers that petition for H-2B workers under this TFR will be conducted by the Federal Government.
DHS expects that petitioners who have been cited by WHD for H-2B program violations will undergo additional scrutiny from USCIS. To estimate the number of firms expected to undergo increased scrutiny, we utilize DOL's Wage and Hour Compliance Action Data.
The worker protection violation end date is established based on the “findings end date” which represents the date that the last worker protection
DHS expects the population of employers with approved, pending, or projected Applications for Temporary Employment Certification will need to familiarize themselves with this rule; an estimated 8,650 employers. We use the 8,650 population, rather than the estimated 6,304 expected to file a petition, because the portability provision is expected to be available to 8,650 potential filers. As discussed above, we do not expect all of these potential filers to take advantage of the portability provision; we do expect that they will read and understand the rule to inform a decision about using the portability provision.
We expect familiarization with the rule will be performed by a HR specialist, in-house lawyer, or outsourced lawyer, and this will be done at the same rate as petitioners who file a Form G-28; an estimated 44.43 percent performed by lawyers. Therefore we estimate that 3,843 lawyers will incur familiarization costs and 4,807 HR specialists will incur familiarization costs.
Calculation for HR specialists: 8,650 approved, pending, and projected applicants −3,843 represented by a lawyer = 4,807 represented by an HR specialist.
The provisions of this rule require the submission of a Form I-129 H-2B petition. The costs for this form include filing costs and the opportunity cost of time to complete and submit the form. The current filing fee for Form I-129 is $460 and employers filing H-2B petitions must submit an additional fee of $150.
The total estimated cost from filing fees for H-2B petitions using Form I-129 is $610.
To estimate the total opportunity cost of time to HR specialists who complete and file Form I-129, DHS uses the mean hourly wage rate of HR specialists of $34.00 as the base wage rate.
Calculation, In-house Lawyer: $71.71 mean hourly wage * 1.45 benefits-to-wage multiplier = $103.98 hourly total compensation (hourly opportunity cost of time).
Calculation: 50 minutes / 60 minutes per hour = 0.83 hour (rounded).
Calculation, In-house Lawyer files Form I-129 and Form G-28: $103.98 hourly opportunity cost of time * 5.17 hours = $537.58 opportunity cost of time per petition.
Calculation, Outsourced Lawyer files Form I-129 and Form G-28: $179.28 hourly opportunity cost of time * 5.17 hours = $926.88 opportunity cost of time per petition.
Calculation, In-house Lawyer: $537.58 opportunity cost of time + $610 filing fees = $1,147.58 cost per petition.
Calculation, Outsourced Lawyer: $926.88 opportunity cost of time + $610 filing fees = $1,536.88 cost per petition.
As mentioned in
As discussed above, DHS estimates that an additional 3,503 petitions will be filed by HR specialists using Form I-129 and an additional 2,801 petitions will be filed by lawyers using Form I-129 and Form G-28. DHS estimates the total cost to file Form I-129 petitions if filed by HR specialists is $2,886,332 (rounded).
Calculation, HR specialist: $1,536.88 cost per petition * 2,801 Form I-129 and Form G-28 = $4,304,801 (rounded) total cost.
Calculation: $2,886,332 total cost of Form I-129 filed by HR specialists + $4,304,801 total cost of Form I-129 and G-28 filed by outsourced lawyers = $7,191,133 estimated total costs to file Form I-129 and G-28.
Employers may use Form I-907 to request premium processing of Form I-129 petitions for H-2B visas. The filing fee for Form I-907 for H-2B petitions is $1,500 and the time burden for completing the form is 35 minutes (0.58 hour).
Calculation: 35 minutes/60 minutes per hour = 0.58 (rounded) hour.
Calculation, In-house Lawyer Form I-907: $103.98 hourly opportunity cost of time * 0.58 hour = $60.31 opportunity cost of time per request.
Calculation, Outsourced Lawyer Form I-907: $179.28 hourly opportunity cost of time * 0.58 hour = $103.98 opportunity cost of time per request.
Calculation, In-house Lawyer: $60.31 opportunity cost of time + $1,500 filing fee = $1,560.31.
Calculation, Outsourced Lawyer: $103.98 opportunity cost of time + $1,500 filing fee = $1,603.98.
As discussed above, DHS estimates that an additional 3,281 Form I-907 will be filed by HR specialists and an additional 2,624 Form I-907 will be filed lawyers. DHS estimates the total cost of Form I-907 filed by HR specialists is about $5,015,304 (rounded).
Calculation: $1,603.98 opportunity costs plus filing fees * 2,624 Form I-907 = $4,208,844 (rounded) total cost of Form I-907 filed by outsourced lawyers.
Calculation: $5,015,304 total cost of Form I-129 filed by HR specialists + $4,208,844 total cost of Form I-907 filed by outsourced lawyers = $9,224,148 estimated total costs to file Form I-907.
Form ETA-9142-B-CAA-6 is an attestation form that includes recruiting requirements, the irreparable harm standard, and document retention obligations. DOL estimates the time burden for completing and signing the form is 0.25 hour, 0.25 hours for retaining records, and 0.50 hours to comply with the returning workers' attestation, for a total time burden of 1 hour. Using the $49.30 hourly total compensation for an HR specialist, the opportunity cost of time for an HR specialist to complete the attestation form, notify third parties, and retain records relating to the returning worker
Additionally, the form requires that petitioners assess and document supporting evidence for meeting the irreparable harm standard, and retain those documents and records, which we assume will require the resources of a financial analyst (or another equivalent occupation). Using the same methodology previously described for wages, the mean hourly wage for a financial analyst is $49.53, and the estimated hourly total compensation for a financial analyst is $71.82.
As discussed previously, DHS believes that the estimated 6,304 remaining certifications for the second half of FY 2022 would include potential employers that might request to employ H-2B workers under this rule. This number of certifications is a reasonable proxy for the number of employers that may need to review and sign the attestation. Using this estimate for the total number of certifications, we estimate the opportunity cost of time for completing the attestation for HR specialists is approximately $310,787 (rounded) and for financial analysts is about $2,263,766 (rounded).
Calculation, Financial Analysts: $359.10 opportunity cost of time to comply with attestation requirements * 6,304 estimated additional petitions = $2,263,766 (rounded) to comply with attestation requirements.
An employer that files Form ETA-9142B-CAA-6 and the I-129 petition 30 or more days after the certified start date of work must conduct additional recruitment of U.S. workers. This consists of placing a new job order with the State Workforce Agency (SWA), contacting the American Job Center (AJC), contacting laid-off workers, and, if applicable, contacting the AFL-CIO. Employers must place a new job order for the job opportunity with the SWA.
Employers are required to make reasonable efforts to contact, by mail or other effective means, their former U.S. workers, including those workers who were furloughed and laid off, beginning January 1, 2020. Employers must also disclose the terms of the job order to these workers as required by the rule.
During the period the SWA is actively circulating the job order, employers must contact, by email or other available electronic means, the nearest local AJC to request staff assistance advertising and recruiting qualified U.S. workers for the job opportunity, and to provide to the AJC the unique identification number associated with the job order placed with the SWA.
If the occupation is traditionally or customarily unionized, employers must provide written notification of the job opportunity to the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment, by providing a copy of the job order, and request assistance in recruiting qualified U.S. workers for the job opportunity.
Finally, the employer is required to provide a copy of the job order to the bargaining representative for its employees in the occupation and area of intended employment, consistent with 20 CFR 655.45(a), or if there is no bargaining representative, post the job order in the places and manner described in 20 CFR 655.45(b).
DOL estimates the average expected time burden for activities related to conducting recruitment is 3 hours.
Employers must notify employees, in a language understood by the worker as necessary or reasonable, that all persons in the United States, including nonimmigrants, have equal access to COVID-19 vaccines and vaccine distribution sites. We assume that employers will provide a printed notification to inform their employees, such as the free publicly available posters published by DOL's WHD. We also assume that printing and posting the notification can be done during the normal course of business and expect that an employer would need to post two copies of a one-page notification. One of these copies would be in English and a second copy would be in a foreign language. The printing cost associated with posting the notifications (assuming that the notification is written) is $0.15 per posting.
Petitioners seeking to hire H-2B nonimmigrants who are currently present in the United States with a valid H-2B visa would need to file a Form I-129 which includes paying the associated fee as discussed above. Also previously discussed, we assume that all employers with an approved TLC (8,650) would be able to file a petition under this provision, and estimate that
As discussed previously, if a petitioner is represented by a lawyer, the lawyer must file Form G-28; if premium processing is desired, a petitioner must file Form I-907 and pay the associated fee. We expect these actions to be performed by an HR specialist, in-house lawyer, or an outsourced lawyer. Moreover, as previously estimated, we expect that about 44.43 percent of these Form I-129 petitions will be filed by an in-house or outsourced lawyer. Therefore, we expect that 242 of these petitions will be filed by a lawyer and the remaining 303 will be filed by a HR specialist. As previously discussed, the estimated cost to file a Form I-129 H-2B petition is $823.96 for an HR specialist; and the estimated cost to file a Form I-129 H-2B petition with accompanying Form G-28 is $1,147.58 for an in-house lawyer and $1,536.88 for an outsourced lawyer. Therefore, we estimate the cost of the additional Forms I-129 from the portability provision for HR specialists is $249,660.
Calculation, Outsourced Lawyer: $1,536.88 estimated cost to file a Form I-129 H-2B petition and accompanying Form G-28 * 242 petitions = $371,925 (rounded).
Previously in this analysis, we estimated that about 93.67 percent of Form I-129 H-2B petitions are filed with Form I-907 for premium processing. As a result of this provision, we expect that an additional 511 Forms I-907 will be filed.
Calculation, HR specialists: 511 Form I-907 −227 Form I-907 filed by a lawyer = 284 Form I-907 filed by an HR specialist.
Calculation for an outsourced lawyer: $1,603.98 to file a Form I-907 * 227 forms = $364,103 (rounded).
The estimated total cost of this provision ranges from $1,315,684 to $1,419,808 depending on what share of the forms are filed by in-house or outsourced lawyers.
Calculation for HR specialists and outsourced lawyers: $249,660 for HR specialists to file Form I-129 H-2B petitions + $371,925 for outsourced lawyers to file Form I-129 and the accompanying Form G-28 + $434,120 for HR specialists to file Form I-907 + $364,103 for outsourced lawyers to file Form I-907 = $1,419,808.
DHS intends to conduct 250 audits of employers hiring H-2B workers and DOL intends to conduct 100 audits of employers hiring H-2B workers, for a total of 350 employers. Employers will need to provide requested information to comply with the audit. The expected time burden to comply with audits conducted by DHS and DOL's Office of Foreign Labor Certification is estimated to be 12 hours.
The Departments expect that petitioners undergoing additional scrutiny will need to submit additional evidence to USCIS. In addition to the previously described burden to assess, document and retain evidence, submission of this evidence is expected to require printing and mailing hundreds of pages of documents. To estimate the cost of additional scrutiny, we assume 138 petitioners will need to print 500 pages of documents and mail this to USCIS. These documents are expected to be able to fit in a Priority Mail Medium Flat Rate box which costs $16.10.
Petitioners are also expected to incur a time burden associated with printing and shipping evidence to USCIS. We estimate it will take an HR specialist or equivalent employee 1 hour to print and ship evidence. Using $49.30 hourly opportunity cost of time for HR specialist, we estimate the opportunity cost of time for each petitioner is $49.30.
We do not expect this provision to impose new costs on to USCIS. The costs to request and review evidence from petitioners is included in the fees paid to the agency.
The total estimated cost of additional scrutiny is $19,375.
We expect that petitioners or their representatives would need to read and understand this rule if they seek to take advantage of the supplemental cap. As a result, we expect this rule would impose one-time familiarization costs associated with reading and understanding this rule. As shown previously, we estimate that
To estimate the cost of rule familiarization, we estimate the time it will take to read and understand the rule by assuming a reading speed of 238 words per minute.
Calculation, Step 2: 172 minutes/60 minutes per hour = 2.9 (rounded) hours.
The estimated hourly total compensation for a HR specialist, in-house lawyer, and outsourced lawyer are $49.30, $103.98, and $179.28, respectively. The estimated opportunity cost of time for each of these filers to read and understand the rule are $142.97, $301.54, and $519.91, respectively.
Calculation, In-house lawyer: $103.98 estimated hourly total compensation for an in-house lawyer * 2.9 hours to read and become familiar with the rule = $301.54 (rounded) opportunity cost of time for an in-house lawyer to read and understand the rule.
Calculation, Outsourced lawyer: $179.28 estimated hourly total compensation for an outsourced lawyer * 2.9 hours to read and become familiar with the rule = $519.91 (rounded) opportunity cost of time for an outsourced lawyer to read and understand the rule.
Calculation for outsourced lawyers: $519.91 opportunity cost of time * 3,843 = $1,998,014 (rounded).
Calculation: $687,257 + $1,998,014 = $2,685,271.
The monetized costs of this rule come from filing and complying with Form I-129, Form G-28, Form I-907, and Form ETA-9142-B-CAA-6, as well as contacting and refreshing recruitment efforts, posting notifications, filings to obtain a porting worker, and complying with audits. The estimated total cost to file Form I-129 and an accompanying Form G-28 ranges from $6,100,704 to $7,191,133, depending on the filer. The estimated total cost of filing Form I-907 ranges from $9,109,557 to $9,224,148, depending on the filer. The estimated total cost of filing and complying with Form ETA-9142-B-CAA-6 is $2,574,553. The estimated total cost of conducting additional recruitment is $932,362. The estimated total cost of the COVID-19 protection provision is approximately $1,891. The estimated cost of the portability provision ranges from $1,315,684 to $1,419,808, depending on the filer. The estimated total cost for employers to comply with audits is $207,060. The estimated total costs for petitioners or their representatives to familiarize themselves with this rule ranges from $1,846,075 to $2,685,271, depending on the filer. The estimated total cost of additional scrutiny is $19,375. The total estimated cost to petitioners ranges from $22,107,261 to $24,255,601, depending on the filer.
Calculation of upper range: $7,191,133 + $9,224,148 + $2,574,553 + $932,362 + $1,891 + $1,419,808 + $207,060 + $2,685,271 + $19,375 = $24,255,601.
USCIS will incur costs related to the adjudication of petitions as a result of this TFR. DHS expects these costs to be recovered by the fees associated with the forms, which have been accounted for as a transfer from petitioners to USCIS and also serve as a proxy for the costs to the agency. The total filing fees associated with Form I-129 H-2B petitions are $3,845,440 and the total filing fees associated with premium processing are $8,857,500.
Calculation: 5,905 premium processing requests * $1,500 in filing fees = $8,857,500.
The INA provides USCIS with the authority for the collection of fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including administrative costs, and services provided without charge to certain applicants and petitioners.
Both DOL and DHS intend to conduct a significant number of audits during the period of temporary need to verify compliance with H-2B program requirements, including the irreparable harm standard as well as other key worker protection provisions implemented through this rule.
Calculation, Step 2: $2,833,249 Compensation /$2,070,773 Full-time Permanent Salaries = 1.37 (rounded) Federal employee benefits to wage ratio.
The Departments assume that employers will incur the costs of this rule and other costs associated with hiring H-2B workers if the expected benefits of those workers exceed the expected costs. We assume that employers expect some level of net benefit from being able to hire additional H-2B workers. However, the Departments do not collect or require data from H-2B employers on the profits from hiring these additional workers to estimate this increase in net benefits.
The inability to access H-2B workers for some entities is currently causing irreparable harm or will cause their businesses to suffer irreparable harm in the near future. Temporarily increasing the number of available H-2B visas for this fiscal year may result in a cost savings, because it will allow some businesses to hire the additional labor resources necessary to avoid such harm. Preventing such harm may ultimately preserve the jobs of other employees (including U.S. workers) at that establishment. Additionally, returning workers are likely to be very familiar with the H-2B process and requirements, and may be positioned to begin work more expeditiously with these employers. Moreover, employers may already be familiar with returning workers as they have trained, vetted, and worked with some of these returning workers in past years. As such, limiting the supplemental visas to returning workers would assist employers that are suffering irreparable harm or will suffer impending irreparable harm.
The Departments assume that workers will only incur the costs of this rule and other costs associated with obtaining a H-2B position if the expected benefits of that position exceed the expected costs. We assume that H-2B workers expect some level of net benefit from being able to work for H-2B employers. However, the Departments do not have sufficient data to estimate this increase in net benefits and lack the necessary resources to investigate this in a timely manner. This rule is not expected to impact wages because DOL prevailing wage regulations apply to all H-2B workers covered by this rule. Additionally, the RIA shows that employers incur costs in conducting additional recruitment of U.S. workers and attesting to irreparable harm from current labor shortfall. These costs suggest employers are not taking advantage of a large supply of foreign labor at the expense of domestic workers.
The existence of this rule will benefit the workers who receive H-2B visas.
Some provisions of this rule will benefit such workers in particular ways. The portability provision of this rule will allow nonimmigrants with valid H-2B visas who are present in the United States to transfer to a new employer more quickly and potentially extend their stay in the United States and, therefore, earn additional wages. Importantly, the rule will also increase information employees have about equal access to COVID-19 vaccinations and vaccine distribution sites. DHS recognizes that some of the effects of these provisions may occur beyond the borders of the United States. The current analysis does not seek to quantify or monetize costs or benefits that occur outside of the United States.
Note as well that U.S. workers will benefit in multiple ways. For example, the additional round of recruitment and U.S. worker referrals required by the provisions of this rule will ensure that a U.S. worker who is willing and able to fill the position is not displaced by a nonimmigrant worker. As noted, the avoidance of current or impending irreparable harm made possible through the granting of supplemental visas in this rule could ensure that U.S. workers—who otherwise may be vulnerable if H-2B workers were not given visas—do not lose their jobs.
The Regulatory Flexibility Act, 5 U.S.C. 601
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 the Act 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 $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, this rule does not exceed the $100 million in 1995 expenditure in any 1 year when adjusted for inflation ($178 million in 2021 dollars based on
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 Executive Order 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 meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, 61 FR 4729 (Feb. 5, 1996).
DHS and its components analyze proposed actions to determine whether the National Environmental Policy Act (NEPA) applies to them and, if so, what degree of analysis is required. DHS Directive (Dir) 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) which experience has shown do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. The Instruction Manual, Appendix A, Table 1 lists Categorical Exclusions that DHS has found to have no such effect. Under DHS NEPA implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: (1) The entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. Instruction Manual, section V.B.2(a-c).
This rule temporarily amends the regulations implementing the H-2B nonimmigrant visa program to increase the numerical limitation on H-2B nonimmigrant visas for FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022, based on the Secretary of Homeland Security's determination, in consultation with the Secretary of Labor, consistent with the FY 2022 Omnibus. It also allows H-2B beneficiaries who are in the United States to change employers upon the filing of a new H-2B petition and begin to work for the new employer for a period generally not to exceed 60 days before the H-2B petition is approved by USCIS.
DHS has determined that this rule clearly fits within categorical exclusion A3(d) because it interprets or amends a regulation without changing its environmental effect. The amendments to 8 CFR part 214 would authorize up to an additional 35,000 visas for noncitizens who may receive H-2B nonimmigrant visas, of which 23,500 are for returning workers (persons issued H-2B visas or were otherwise granted H-2B status in Fiscal Years 2019, 2020, or 2021). The proposed amendments would also facilitate H-2B nonimmigrants to move to new employment faster than they could if they had to wait for a petition to be approved. The amendment's operative provisions approving H-2B petitions under the supplemental allocation would effectively terminate after September 30, 2022 for the cap increase, and after January 24, 2023 for the portability provision. DHS believes amending applicable regulations to authorize up to an additional 35,000 H-2B nonimmigrant visas will not result in any meaningful, calculable change in environmental effect with respect to the current H-2B limit or in the context of a current U.S. population exceeding 331,000,000 (maximum temporary increase of 0.0106 percent).
Calculation: 35,000 additional visas/331,000,000 million people in the United States = 0.0106 (rounded) percent temporary increase in the population.
The amendment to applicable regulations is a stand-alone temporary authorization and not a part of any larger action, and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this action is categorically excluded and no further NEPA analysis is required.
The Office of Information and Regulatory Affairs has determined that this temporary final rule is not a “major rule” as defined by the Congressional Review Act, 5 U.S.C. 804(2), and thus is not subject to a 60-day delay in the rule becoming effective.
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Petitioners will use the new Form ETA-9142B-CAA-6 to make attestations regarding, for example, irreparable harm and the returning worker requirement (unless exempt because the H-2B worker is a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 returning worker exemption cap) described above. Petitioners will need to file the attestation with DHS until it announces that the supplemental H-2B cap has been reached. In addition, the petitioner will need to retain all documentation demonstrating compliance with this implementing rule, and must provide it to DHS or DOL in the event of an audit or investigation.
In addition to obtaining immediate emergency approval, DOL is seeking comments on this information collection pursuant to 5 CFR 1320.13. Comments on the information collection must be received by July 18, 2022. This process of engaging the public and other Federal agencies helps ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The PRA provides that 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 accordance with the PRA, DOL is affording the public with notice and an opportunity to comment on the new information collection, which is necessary to implement the requirements of this rule. The information collection activities covered under a newly granted OMB Control Number 1205-NEW are required under Section 204 of Division O of the FY 2022 Omnibus, which provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in [FY] 2022 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2022 by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation. As previously discussed in the preamble of this rule, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has decided to increase the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of up to, but not more than, an additional 35,000 visas for FY 2022 for certain H-2B workers with start dates on or after April 1, 2022 through September 30, 2022, for U.S. businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm. As with the previous supplemental rules, the Secretary has determined that the additional visas will only be available for returning workers, that is workers who were issued H-2B visas or otherwise granted H-2B status in FY 2019, 2020, or 2021, unless the worker is one of the 11,500 nationals of one of the Northern Central American countries and Haiti who are exempt from the returning worker requirement.
Commenters are encouraged to discuss the following:
• 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;
• 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;
• The quality, utility, and clarity of the information to be collected; and
• 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, for example, permitting electronic submission of responses.
The aforementioned information collection requirements are summarized as follows:
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Administrative practice and procedure, Aliens, Cultural exchange program, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Administrative practice and procedure, Aliens, Cultural exchange program, Employment, Penalties, Reporting and recordkeeping requirements, Students.
Administrative practice and procedure, Employment, Employment and training, Enforcement, Foreign workers, Forest and forest products, Fraud, Health professions, Immigration, Labor, Longshore and harbor work, Migrant workers, Nonimmigrant workers, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.
For the reasons discussed in the joint preamble, chapter I of title 8 of the Code of Federal Regulations is amended as follows:
6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
(h) * * *
(6) * * *
(xii)
(
(B)
(
(
(
(
(
(
(
(
(
(C)
(D)
(E)
(F)
(28)
(A) An alien in valid H-2B nonimmigrant status whose new petitioner files a non-frivolous H-2B petition requesting an extension of the alien's stay on or after July 28, 2022, is authorized to begin employment with the new petitioner after the petition described in this paragraph (h)(28) is received by USCIS and before the new H-2B petition is approved, but no earlier than the start date indicated in the new H-2B petition; or
(B) An alien whose new petitioner filed a non-frivolous H-2B petition requesting an extension of the alien's stay before July 28, 2022 that remains pending on July 28, 2022, is authorized to begin employment with the new petitioner before the new H-2B petition is approved, but no earlier than the start date of employment indicated on the new H-2B petition.
(ii)(A) With respect to a new petition described in paragraph (h)(28)(i)(A) of this section, and subject to the requirements of 8 CFR 274a.12(b)(30), the new period of employment described in paragraph (h)(28)(i) of this section may last for up to 60 days beginning on the Received Date on Form I-797 (Notice of Action) or, if the start date of employment occurs after the I-797 Received Date, for a period of up to 60 days beginning on the start date of employment indicated in the H-2B petition.
(B) With respect to a new petition described in paragraph (h)(28)(i)(B) of this section, the new period of employment described in paragraph (h)(28)(i) of this section may last for up to 60 days beginning on the later of either July 28, 2022 or the start date of employment indicated in the H-2B petition.
(C) With respect to either type of new petition, if USCIS adjudicates the new petition before the expiration of this 60-day period and denies the petition, or if the new petition is withdrawn by the petitioner before the expiration of the 60-day period, the employment authorization associated with the filing of that petition under 8 CFR 274a.12(b)(30) will automatically terminate 15 days after the date of the denial decision or 15 days after the date on which the new petition is withdrawn. Nothing in this paragraph (h)(28) is intended to alter the availability of employment authorization related to professional H-2B athletes who are traded between organizations pursuant to paragraph (h)(6)(vii) of this section and 8 CFR 274a.12(b)(9).
(iii) In addition to meeting all other requirements in paragraph (h)(6) of this section for the H-2B classification, to commence employment and be approved under this paragraph (h)(28):
(A) The alien must either (1) have been in valid H-2B nonimmigrant status on or after July 28, 2022 and be the
(B) The petitioner must comply with all Federal, State, and local employment-related laws and regulations, including, where applicable, health and safety laws, laws related to COVID-19 worker protections, any right to time off or paid time off for COVID-19 vaccination, or to reimbursement for travel to and from the nearest available vaccination site; and
(C) The petitioner may not impede, interfere, or refuse to cooperate with an employee of the Secretary of the U.S. Department of Labor who is exercising or attempting to exercise DOL's audit or investigative authority under 20 CFR part 655, subpart A, and 29 CFR 503.25.
(iv) Authorization to initiate employment changes pursuant to this paragraph (h)(28) begins at 12 a.m. on July 28, 2022, and ends at the end of January 24, 2023.
8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.
(b) * * *
(32)(i) Pursuant to 8 CFR 214.2(h)(28) and notwithstanding 8 CFR 214.2(h)(2)(i)(D), an alien is authorized to be employed no earlier than the start date of employment indicated in the H-2B petition and no earlier than July 28, 2022, by a new employer that has filed an H-2B petition naming the alien as a beneficiary and requesting an extension of stay for the alien, for a period not to exceed 60 days beginning on:
(A) The later of the “Received Date” on Form I-797 (Notice of Action) acknowledging receipt of the petition, or the start date of employment indicated on the new H-2B petition, for petitions filed on or after July 28, 2022; or
(B) The later of July 28, 2022 or the start date of employment indicated on the new H-2B petition, for petitions that are pending as of July 28, 2022.
(ii) If USCIS adjudicates the new petition prior to the expiration of the 60-day period in paragraph (b)(32)(i) of this section and denies the new petition for extension of stay, or if the petitioner withdraws the new petition before the expiration of the 60-day period, the employment authorization under this paragraph (b)(32) will automatically terminate upon 15 days after the date of the denial decision or the date on which the new petition is withdrawn. Nothing in this section is intended to alter the availability of employment authorization related to professional H-2B athletes who are traded between organizations pursuant to paragraph (b)(9) of this section and 8 CFR 214.2(h)(6)(vii).
(iii) Authorization to initiate employment changes pursuant to 8 CFR 214.2(h)(28) and paragraph (b)(32)(i) of this section begins at 12 a.m. on July 28, 2022, and ends at the end of January 24, 2023.
Accordingly, for the reasons stated in the joint preamble, 20 CFR part 655 is amended as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
(a) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xii) to request H-2B workers with FY 2022 employment start dates on or after April 1, 2022 and no later than September 30, 2022, must meet the following requirements:
(1) The employer must attest on the Form ETA-9142-B-CAA-6 that its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xii). Additionally, the employer must attest that it will provide documentary evidence of the applicable irreparable harm to DHS or DOL upon request.
(2) The employer must attest on Form ETA-9142-B-CAA-6 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xii), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2019, 2020, or 2021), unless the H-2B worker is a national of Guatemala, El Salvador, Honduras, or Haiti and is counted towards the 11,500 cap described in 8 CFR 214.2(h)(6)(xii)(A)(
(3) The employer must attest on Form ETA-9142-B-CAA-6 that the employer will comply with all the assurances, obligations, and conditions of employment set forth on its approved
(4) The employer must attest on Form ETA-9142-B-CAA-6 that it will comply with all Federal, State, and local employment-related laws and regulations, including, where applicable, health and safety laws and laws related to COVID-19 worker protections; any right to time off or paid time off for COVID-19 vaccination, or to
(5) An employer that submits Form ETA-9142B-CAA-6 and the I-129 petition 30 or more days after the certified start date of work, as shown on its approved
(i) Not later than the next business day after submitting the I-129 petition for H-2B worker(s), the employer must place a new job order for the job opportunity with the State Workforce Agency (SWA), serving the area of intended employment. The employer must follow all applicable SWA instructions for posting job orders, inform the SWA that the job order is being placed in connection with a previously certified
(ii) During the period of time the SWA is actively circulating the job order described in paragraph (a)(5)(i) of this section for intrastate clearance, the employer must contact, by email or other available electronic means, the nearest comprehensive American Job Center (AJC) serving the area of intended employment where work will commence, request staff assistance advertising and recruiting qualified U.S. workers for the job opportunity, and provide the unique identification number associated with the job order placed with the SWA or, if unavailable, a copy of the job order. If a comprehensive AJC is not available, the employer must contact the nearest affiliate AJC serving the area of intended employment where work will commence to satisfy the requirements of this paragraph (a)(5)(ii);
(iii) Where the occupation or industry is traditionally or customarily unionized, during the period of time the SWA is actively circulating the job order described in paragraph (a)(5)(i) of this section for intrastate clearance, the employer must contact (by mail, email or other effective means) the nearest American Federation of Labor and Congress of Industrial Organizations office covering the area of intended employment and provide written notice of the job opportunity, by providing a copy of the job order placed pursuant to (a)(5)(i) of this section, and request assistance in recruiting qualified U.S. workers for the job;
(iv) During the period of time the SWA is actively circulating the job order described in paragraph (a)(5)(i) of this section for intrastate clearance, the employer must contact (by mail or other effective means) its former U.S. workers, including those who have been furloughed or laid off, during the period beginning January 1, 2020, until the date the I-129 petition required under 8 CFR 214.2(h)(6)(xii) is submitted, who were employed by the employer in the occupation at the place of employment (except those who were dismissed for cause or who abandoned the worksite), disclose the terms of the job order, and solicit their return to the job. The contact and disclosures required by this paragraph (a)(5)(iv) must be provided in a language understood by the worker, as necessary or reasonable;
(v) During the period of time the SWA is actively circulating the job order described in paragraph (a)(5)(i) of this section for intrastate clearance, the employer must engage in the recruitment of U.S. workers as provided in § 655.45(a) and (b). The contact and disclosures required by this paragraph (a)(5)(v) must be provided in a language understood by the worker, as necessary or reasonable; and
(vi) The employer must hire any qualified U.S. worker who applies or is referred for the job opportunity until the date on which the last H-2B worker departs for the place of employment, or 30 days after the last date on which the SWA job order is posted, whichever is later. Consistent with § 655.40(a), applicants can be rejected only for lawful job-related reasons.
(6) The employer must attest on Form ETA-9142-B-CAA-6 that it will fully cooperate with any audit, investigation, compliance review, evaluation, verification, or inspection conducted by DOL, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with applicable laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2022 supplemental allocations outlined in this paragraph (a) and § 655.66(a), as a condition for the approval of the H-2B petition. Pursuant to this subpart and 29 CFR 503.25, the employer will not impede, interfere, or refuse to cooperate with an employee of the Secretary who is exercising or attempting to exercise DOL's audit or investigative authority.
(b) This section expires on October 1, 2022.
(c) The requirements under paragraph (a) of this section are intended to be non-severable from the remainder of this section; in the event that paragraph (a)(1), (2), (3), (4), or (5) of this section is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this section is also intended to be enjoined or held to be invalid in such jurisdiction, without prejudice to workers already present in the United States under this part, as consistent with law.
(a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2022 under authority of the temporary increase in the numerical limitation under section 204 of Division O, Public Law 117-103 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following:
(1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase;
(2) Evidence establishing, at the time of filing the I-129 petition, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xii);
(3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xii), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2019, 2020, or 2021), unless the H-2B worker(s) is a national of El Salvador, Guatemala,
(4) If applicable, proof of recruitment efforts set forth in § 655.65(a)(5)(i) through (v) and a recruitment report that meets the requirements set forth in § 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in § 655.65(a)(5)(vi).
(b) DOL or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request.
(c) This section expires on October 1, 2025.