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Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation is adopting a final rule to implement section 18(a)(4) of the Federal Deposit Insurance Act. The final rule establishes the process by which the Federal Deposit Insurance Corporation will identify and investigate conduct that may violate section 18(a)(4) of the Federal Deposit Insurance Act, the standards under which such conduct will be evaluated, and the procedures which the Federal Deposit Insurance Corporation will follow when formally and informally enforcing the provisions of section 18(a)(4) of the Federal Deposit Insurance Act.
The rule is effective on July 5, 2022.
Richard M. Schwartz, Counsel, Legal Division, 202-898-7424,
Section 18(a)(4) of the Federal Deposit Insurance Act, 12 U.S.C. 1828(a)(4), (Section 18(a)(4)) prohibits any person from misusing the name or logo of the Federal Deposit Insurance Corporation (FDIC) or from engaging in false advertising or making knowing misrepresentations about deposit insurance. The FDIC has observed an increasing number of instances where financial services providers or other entities or individuals have misused the FDIC's name or logo or have made false or misleading representations about deposit insurance. To provide transparency into how the FDIC will address these and similar concerns, the FDIC is adopting regulations to further clarify its procedures for identifying, investigating, and where necessary taking formal and informal action to address potential violations of Section 18(a)(4). The regulations also establish a point-of-contact for receiving complaints and inquiries about potential misrepresentations regarding deposit insurance. Although the FDIC is not required to promulgate regulations to implement section 18(a)(4), the FDIC nonetheless believes that the final rule establishes a more transparent process that will benefit all parties and promotes stability and confidence in FDIC deposit insurance and the nation's financial system.
The FDIC has steadfastly and proactively sought to protect consumers
Although the FDIC has broad statutory authority in this area, the FDIC has never issued specific regulations regarding false representations related to deposit insurance or the misuse of the FDIC's name or logo. Recently, the FDIC has observed an increasing number of instances where financial service providers or other entities or individuals have misused the FDIC's name or logo or have made false or misleading representations about deposit insurance. Therefore, the FDIC adopts the following rule, which provides certain procedures the FDIC will follow for identifying, investigating, and taking formal and informal action to address potential violations of Section 18(a)(4). The rule also provides for an established point-of-contact responsible for receiving complaints about potential violations of Section 18(a)(4) and responding to inquiries about deposit insurance coverage representations.
On February 26, 2020, the FDIC published a Request for Information (2020 RFI) related to potential modernization of its signage and advertising rules set out in part 328 of the FDIC regulations.
On May 10, 2021, the FDIC published a notice of proposed rulemaking (NPR)
The FDIC issued the NPR on May 10, 2021, with a 60-day comment period. In the NPR, the FDIC also stated that it would consider any relevant comments submitted in response to the 2021 RFI. The FDIC received nineteen comments in response to the NPR.
Many commenters requested certain changes to clarify specific elements of the proposed rule. For example, a number of commenters asked that the FDIC clarify that IDIs have the authority to submit complaints of possible violations. Other commenters requested that the FDIC define certain terms in the proposed rule. For example, in regard to 12 CFR 308.147, one commenter requested the FDIC to clarify the meaning of the phrase “a known IAP” of an IDI.
Additionally, in reviewing the comments, the FDIC noted that commenters used differing terms to refer to those impacted by potential misrepresentations. Some commenters referred to these as “consumers.” Others referred to them as “consumers or depositors.” Others used the terms, “depositors or prospective depositors.” Finally, one commenter noted that “individuals . . . local governments, charitable organizations, corporations,” and others could be impacted.
Commenters also suggested the FDIC take additional actions beyond the proposal. For example, commenters suggested the FDIC adopt a “one-click rule” for social media and internet advertising,
The FDIC received ten comments related to proposed § 328.102(b)(3)(ii), which provided that, if a non-bank entity makes claims regarding the insured-status of its products, the failure to identify the name(s) of the IDI(s) which would be receiving deposits would be a material omission in violation of the rule. The commenters, mostly trade associations, recommended that the FDIC clarify the provision because they argued it could constrain the dissemination of information by and about so-called “deposit placement networks.”
Two commenters requested that the FDIC clarify the advertising and marketing requirements applicable to non-deposit and hybrid products. One commenter asked in particular how the proposed rule and the 2020 RFI would work together, and how the FDIC will consider and investigate complaints and statements regarding hybrid products.
With respect to requests that the FDIC clarify that IDIs can submit complaints under the proposed rule, the FDIC reviewed the language of proposed § 328.103, which allows any “person” to submit complaints, and the definition of “person” under proposed § 328.101, which specifically includes Regulated Institutions like IDIs. The FDIC believes these provisions make it sufficiently clear that IDIs can submit complaints, and therefore is not making any changes to these sections of the proposed rule.
Similarly, the FDIC does not believe it is necessary to amend the proposed rule to further define the phrase “known IAP” as it is used in proposed § 328.104. The FDIC interprets this phrase to mean any person who is actually known to the
Based upon the comments received, the FDIC recognizes the need to define a single term to describe those that may be adversely impacted by violations of Section 18(a)(4). To provide clarification, the FDIC has added a defined term, “Consumer,” to include all current or potential depositors, including natural persons, organizations, corporate entities, and governmental bodies.
With regard to the suggestion that the FDIC implement standard disclosures and a “one-click” rule for social media and internet advertising, the FDIC does not believe it is advisable to adopt these suggestions in light of the pace of technological change in these areas. The FDIC believes any formats prescribed at this time could quickly become obsolete or even counterproductive as technology continues to evolve. Accordingly, the FDIC believes the proposed rule as currently drafted, which sets forth standard-based requirements as opposed to prescribing specific formats, is more appropriate.
With regard to the suggestion that the FDIC create a database of IAPs who have potentially violated the proposed rule, the FDIC believes that such a database could risk reputational harm to individuals who have not yet been found to have engaged in a violation. Further, to the extent the FDIC pursues formal enforcement action under the proposed rule, a public notice of charges or order will be issued. The FDIC believes that the publication of such notices and orders would be generally sufficient to provide IDIs with information about any individual who the FDIC believes has violated section 18(a)(4) or the implementing regulation.
With regard to the suggestion of a voluntary register of FDIC-insured products, the FDIC does not believe such a register would be advisable. The voluntary nature of such a register would limit its usefulness. Moreover, the FDIC resources that would be required to maintain such a register would likely be significant and outweigh any benefit it may have.
With regard to the proposal that the FDIC institute an information sharing system with state authorities, the FDIC does not believe any changes to the proposed rule are necessary. Proposed § 328.105 authorizes the FDIC to notify other authorities (including state regulators) of conduct that may fall within their jurisdiction. The FDIC recognizes the importance of working with other state and Federal agencies to address false, misleading, or otherwise deceptive representations regarding deposit insurance. Conduct that violates Section 18(a)(4) may also violate other statutory schemes, including but not limited to Section 5 of the Federal Trade Commission Act (FTC Act), 5 U.S.C. 45, (Section 5) and Section 1031 of the Dodd-Frank Act, 12 U.S.C. 5531 (Section 1031). Indeed, other laws or regulations may encompass broader conduct than that reached by Section 18(a)(4). For example, certain of Section 18(a)(4)'s prohibitions apply only to knowing misrepresentations, while several other statutes prohibiting deception do not require that misrepresentations be made knowingly. Nothing contained in this regulation should be read to limit the authority of any state or Federal agency or individual under any other law, including but not limited to the Consumer Financial Protection Bureau, the Federal Trade Commission, the Federal Reserve Board of Governors, the U.S. Department of Justice, state Attorneys General, and the FDIC itself.
Based upon the facts and circumstances presented in individual cases, the FDIC anticipates that it will work with other agencies to address misrepresentations regarding deposit insurance when appropriate. The FDIC believes the referral authority currently contained in § 328.105 adequately provides for such cooperation. However, to further clarify, conduct that violates Section 18(a)(4) may at times violate other statutory schemes as well. As such, the FDIC is adding a new § 328.109 to expressly reiterate that the FDIC's authority under Section 18(a)(4) does not bar any other action authorized by law, by the FDIC or any other agency. While this reservation of authority to the FDIC and other agencies and individuals is provided in the plain language of Section 18(a)(4), the FDIC believes it is helpful to reference it in the final rule to avoid any confusion on this point.
Finally, in response to the suggestions that the FDIC require non-IDIs to make certain affirmative statements related to deposit insurance, the FDIC made revisions to the proposed § 328.102(b)(3)(ii), discussed below. The FDIC is not precluded from imposing additional requirements to ensure appropriate use of its official sign and advertisement language if the facts and circumstances warrant such action.
With respect to the comments regarding the language of proposed § 328.102(b)(3)(ii), the FDIC's aim in the proposed rule was to address situations in which non-bank entities were making unsubstantiated claims about the availability of deposit insurance without directly or indirectly identifying the IDIs with which these entities were ostensibly doing business. In such cases, consumers and the FDIC are unable to effectively evaluate the accuracy of such claims by non-bank entities. Moreover, even if the non-bank entity actually placed deposits at one or more IDIs, information identifying the IDI(s) at which such funds were being placed is vital to understanding the extent and manner of deposit insurance provided. Omission of this information could impact the insurability of the deposited funds to the consumer's detriment.
Commenters have pointed out that it may not always be possible to identify with specificity the IDI(s) that will receive funds placed through a deposit network until those funds are actually
Rather than requiring non-bank entities that are advertising FDIC-insured deposits to identify the specific IDI(s) that
With respect to comments requesting clarification relating to advertisements for hybrid products, the FDIC does not believe that any change to the proposed rule is necessary. The proposed rule prohibits misrepresentations about deposit insurance in advertising related to hybrid products. The proposed rule adopts the definition of hybrid products contained in subpart A, and its prohibitions related to advertising of hybrid products are consistent with the requirements of subpart A. To the extent that there are any future amendments to subpart A that impact the proposed rule's provisions related to hybrid products, the FDIC will address them at that time.
For the reasons stated above, the final rule adopts the proposed rule with certain limited changes. The FDIC is amending § 328.101 to add a definition for the term “Consumer,” to identify those intended to be protected under the regulation. The FDIC is also amending § 328.102(b)(3)(ii), adding a new § 328.102(b)(5), and redesignating § 328.102(b)(5) as § 328.102(b)(6) in order to clarify how marketing related to deposit networks can comply with the regulation.
Additionally, the FDIC is adding a new § 328.109 to make clear that, in accordance with the plain language of Section 18(a), the existence of the FDIC's authority to pursue enforcement actions under this subpart does not impact the authority of any other state or Federal agency or individual to pursue any other action authorized by any law. The FDIC is also making a minor, technical amendment to § 328.107 to provide clarity regarding the General Counsel's delegated authority to initiate and prosecute formal enforcement actions under the final rule.
Finally, the FDIC is redesignating the existing regulations in part 328 as subpart A to part 328, entitled “Advertisement of Membership,” and is establishing a new subpart B to part 328, entitled “False Advertising, Misrepresentation of Insured Status, and Misuse of the FDIC's Name or Logo” containing the new regulations described herein. Finally, the FDIC is making technical amendments to § 328.3, limiting the applicability of definitions in that section to subpart A of part 328, and not to part 328, generally.
The final rule will primarily affect non-bank entities and individuals who are potentially misusing the FDIC's name or logo or are making misrepresentations about deposit insurance. The FDIC currently insures 4,960 depository institutions
As discussed previously, the final rule will clarify the FDIC's procedures for evaluating potential violations of Section 18(a)(4). The final rule will generally be consistent with existing practices used by the FDIC with respect to these matters. Further the rule will not affect the application of related criminal prohibitions under 18 U.S.C. 709. Therefore, the FDIC believes that the final rule is unlikely to have any significant effect on formal and informal enforcement of the Section 18(a)(4) prohibitions.
The final rule could pose some indirect disclosure costs on non-depository entities. The rule's description of “material omission” provides that a statement that a product is insured or guaranteed by the FDIC violates the rule if non-depository entities who make representations about
The FDIC believes that the final rule will benefit FDIC-insured institutions and members of the public by further clarifying what constitutes a violation of Section 18(a)(4), by creating a process by which institutions and members of the public can report suspected instances of false advertising, misuse, or misrepresentation regarding deposit insurance, and by establishing clear procedures by which the FDIC will investigate and, where necessary, formally and informally resolve potential violations of Section 18(a)(4). Specifically, the added transparency on the FDIC's processes for investigating potential instances of misuse or misrepresentation and, if needed, resolution are expected to benefit the parties involved by establishing a common understanding of those processes.
The FDIC has considered alternatives to the rule but believes that adopting subpart B to part 328 represents the most appropriate option. As discussed previously, Section 18(a)(4) establishes prohibitions against the misuse of the FDIC's name or logo and prohibits misrepresentations and false advertising in relation to deposit insurance. The FDIC considered the status quo alternative of not adopting a regulation. However, the FDIC believes that the final rule is the most appropriate action because it provides clarity for the public regarding what constitutes misuse of FDIC name or logo or misrepresentation with respect to FDIC insurance, how the FDIC will identify and investigate suspected instances of misuse or misrepresentation, and the process by which the FDIC will pursue formal or informal resolution of instances of misuse or misrepresentation.
The Regulatory Flexibility Act (RFA), requires that, in connection with a notice of final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of the final rule on small entities.
As of June 30, 2021, the FDIC insured 4,960 depository institutions, of which 3,374 are considered small banking organizations for the purposes of RFA.
Based on the information above, the FDIC certifies that the rule would not have a significant economic impact on a substantial number of small entities.
The Paperwork Reduction Act of 1995 (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
Section 722 of the Gramm-Leach-Bliley Act 48 requires the Federal banking agencies to use plain language in all proposed and final rulemakings published in the
For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a
As required by the Congressional Review Act, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),
Advertising, Bank deposit insurance, Savings associations, Signs and symbols.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends 12 CFR part 328 as follows:
12 U.S.C. 1818, 1819 (Tenth), 1820(c), 1828(a).
(a)
(e) * * *
(1) * * *
(i)
(ii)
This subpart applies to any person who:
(a) Falsely represents, expressly or by implication, that any deposit liability, obligation, certificate, or share is FDIC-insured by using the FDIC's name or logo;
(b) Knowingly misrepresents, expressly or by implication, that any deposit liability, obligation, certificate, or share is insured by the FDIC if such an item is not so insured;
(c) Knowingly misrepresents, expressly or by implication, the extent to which or the manner in which any deposit liability, obligation, certificate, or share is insured by the FDIC, if such an item is not insured to the extent or manner represented; or
(d) Aids or abets another in any of the foregoing listed in paragraphs (a) through (c) of this section.
For purposes of this subpart:
(a)
(2) No person may represent or imply that any Uninsured Financial Product is insured or guaranteed by the FDIC by using FDIC-Associated Terms or by using FDIC-Associated Images as part of an Advertisement, solicitation, or other publication or dissemination.
(3) This section applies, but is not limited, to:
(i) An Advertisement for any Uninsured Financial Product that features or includes one or more FDIC-Associated Terms or FDIC-Associated Images, without a clear, conspicuous, and prominent disclaimer that the products being offered are not FDIC insured or guaranteed.
(ii) An Advertisement for any Uninsured Financial Product that may be backed or guaranteed by an entity other that the FDIC, but features or includes one or more FDIC-Associated Terms or FDIC-Associated Images, without a clear, conspicuous, prominent, and accurate explanation as to the actual nature and source of the guarantee.
(iii) An Advertisement for any Non-Deposit Product or Hybrid Product by a Regulated Institution that includes any statement or symbol which implies or suggests the existence of deposit insurance relating to the Non-Deposit Product or Hybrid Product.
(iv) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is an FDIC-insured institution if this is not in fact true.
(v) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is associated with an FDIC-insured institution if the nature of the association is not clearly, conspicuously, prominently, and accurately described.
(vi) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is the FDIC or any office, division, or subdivision thereof, if this is not in fact true.
(vii) Publication or dissemination of information, regardless of the media or platform, that suggests or implies that the party making the representation is associated with the FDIC or any office, division, or subdivision thereof, if the nature of the association is not clearly, conspicuously, prominently, and accurately described.
(b)
(i) That any deposit liability, obligation, certificate, or share is insured under this subpart if such a deposit is not so insured;
(ii) The extent to which any deposit liability, obligation, certificate, or share is insured under this subpart if such item is not insured to the extent represented; or
(iii) The manner in which any deposit liability, obligation, certificate, or share is insured under this subpart if such item is not insured in the manner represented.
(2) For the purposes of this section, a statement is deemed to be a statement regarding deposit insurance, if it:
(i) Includes any FDIC-Associated Images or FDIC-Associated Terms;
(ii) Makes any representation, suggestion, or implication about the existence of FDIC insurance or the extent or manner of coverage; or
(iii) Makes any representation, suggestion, or implication about the existence, extent, or effectiveness of any guarantee by FDIC in the event of financial distress by Insured Depository Institutions, whether a specific Insured Depository Institution or Insured Depository Institutions generally, including but not limited to bank failure, insolvency, or receivership of such institutions.
(3) For the purposes of this section, a statement regarding deposit insurance violates this section, if:
(i) The statement contains any material representations which would have the tendency or capacity to mislead a reasonable consumer, regardless of whether any such consumer was actually misled; or
(ii) The statement omits material information that would be necessary to prevent a reasonable consumer from being misled, regardless of whether any such consumer was actually misled.
(4) Without limitation, a false or misleading representation is deemed to
(i) Uninsured Financial Products are insured or guaranteed by the FDIC;
(ii) Insured Deposits (whether generally or at a particular Regulated Institution) are not insured or guaranteed by the FDIC;
(iii) The amount of deposit insurance coverage is different (whether greater or less) than actually provided under the FDI Act;
(iv) The circumstances under which deposit insurance may be paid are different than actually provided under the FDI Act;
(v) The requirements to qualify for deposit insurance, or the process by which deposit insurance would be paid, are different from what is provided under the FDI Act and its implementing regulations in this chapter, including false or misleading claims related to actions required of consumers to qualify for or obtain such insurance; or
(vi) Regulated Institutions may convert Insured Deposits into another form of liability that is not insured, such as unsecured debt or equity.
(5) Without limitation, a statement regarding deposit insurance will be deemed to omit material information if the absence of such information could lead a reasonable consumer to believe any of the material misrepresentations set forth in paragraph (b)(4) of this section or could otherwise result in a reasonable consumer being unable to understand the extent or manner of deposit insurance provided. For example, if a statement is made by a person other than an Insured Depository Institution that represents or implies that an advertised product is insured or guaranteed by the FDIC, it will be deemed to be a material omission to fail to identify the Insured Depository Institution(s) with which the representing party has a direct or indirect business relationship for the placement of deposits and into which the consumer's deposits may be placed.
(6) Without limitation, a representation is deemed to have been knowingly made if the person making the representation:
(i) Has made false or misleading representations regarding deposit insurance;
(ii) Has been advised by the FDIC in an advisory letter, as provided in § 328.106(a), or has been advised by another governmental or regulatory authority, including, but not limited to, another Federal banking agency, the Federal Trade Commission, the U.S. Department of Justice, or a state bank supervisor, that such representations are false or misleading; and
(iii) Thereafter, continues to make these, or substantially-similar, representations.
Should any person have reason to believe that anyone is or may be acting in violation of section 18(a) of the FDI Act (12 U.S.C. 1828(a)) or this subpart, or have questions regarding the accuracy of deposit-related representations, such individuals may contact the FDIC at the FDIC Information and Support Center,
(a) The General Counsel has delegated authority to investigate potential violations of section 18(a) of the FDI Act (12 U.S.C. 1828(a)) and this subpart.
(b) Such investigations will be conducted as prescribed under section 10(c) of the FDI Act (12 U.S.C. 1820(c)) and subpart K of part 308 of this chapter (12 CFR 308.144 through 308.150). Notwithstanding the general confidentiality provisions of 12 CFR 308.147, in cases that may pose a risk of imminent harm to consumers, the FDIC may disclose or confirm the existence of an investigation that does not involve an Insured Depository Institution or a known IAP thereof. Such disclosure must not disclose any information obtained or uncovered during the course of the investigation.
(a) If, in connection with the receipt of an inquiry or complaint, or during the course of an investigation, informal resolution, or formal enforcement under this subpart:
(1) The FDIC becomes aware of conduct by a Regulated Institution for which another Federal banking agency is the appropriate Federal banking agency or an Institution-Affiliated Party of such an institution, that appears to violate section 18(a) of the FDI Act (12 U.S.C. 1828(a)), the FDIC may recommend that the appropriate Federal banking agency take appropriate enforcement action. If the appropriate Federal banking agency does not take the recommended action within 30 days, the FDIC may pursue any and all remedies available under section 18(a) or the FDI Act (12 U.S.C. 1828(a)) and this subpart;
(2) The FDIC becomes aware of conduct that the FDIC has reason to believe violates a civil law or regulations within the jurisdiction of another regulatory authority, the FDIC may take steps to notify the appropriate authority; and
(3) The FDIC becomes aware of conduct that the FDIC has reason to believe violates 18 U.S.C. 709, the FDIC may notify FDIC's Office of Inspector General for referral to the appropriate criminal law enforcement authority.
(b) To the extent that any records are provided to a regulatory or criminal law enforcement authority, as set forth in paragraph (a) of this section, the provision of such records will be made in accordance with the requirements of part 309 of this chapter. Where such records were obtained during the course of an investigation, informal resolution, or formal enforcement action, the General Counsel will be considered the Director of the FDIC's Division having primary authority over records so obtained.
(a) If the FDIC has reason to believe that any person may be misusing an FDIC-Associated Image or FDIC-Associated Term or otherwise violating § 328.102(a), or may be making false or misleading representations regarding deposit insurance in violation of § 328.102(b), the FDIC may issue an advisory letter to such a person and/or any person who aids or abets another in such conduct, including any Third-Party Publisher. Generally, such an advisory letter will:
(1) Alert the recipient of advisory letter of the basis for the FDIC's concerns;
(2) Request that the person and/or Third-Party Publisher:
(i) Take reasonable steps to prevent any violations of section 18(a) of the FDI Act (12 U.S.C. 1828(a)) and this subpart;
(ii) Commit in writing to refrain from such violations in the future; and
(iii) Notify the FDIC in writing that the identified concerns have been fully addressed and remediated; and
(2) Offer the person or Third-Party Publisher the opportunity to provide additional information, documentation, or justifications to substantiate the representations made or otherwise refute the FDIC's expressed concerns.
(b) Except in cases where the FDIC has reason to believe that consumers or Insured Depository Institutions may suffer harm arising from continued violations, recipients of advisory letters described in paragraph (a) of this section will be provided not less than fifteen (15) days to provide the requested commitment, explanation, or justification.
(c) Where a recipient of an advisory letter described in paragraph (a) of this
(d) Where a recipient of an advisory letter described in paragraph (a) of this section fails to respond to the letter, fails to make the requested commitments, or fails to provide additional information, documentation, or justifications that the FDIC, in its discretion, finds adequate to substantiate the representations made or otherwise refute the concerns set forth in the advisory letter, the FDIC may pursue all remedies set forth in this subpart.
(e) Nothing in this section will prevent the FDIC from commencing a formal enforcement action under § 328.107 at any time before or after the issuance of an advisory letter under this section if:
(1) The FDIC has reason to believe that consumers or Insured Depository Institutions may suffer harm arising from continued violations; or
(2) The person to whom such an advisory letter would be sent has previously received a similar advisory letter from the FDIC under paragraph (a) of this section.
(a)
(b)
(1) In a case where the person who is the subject of the action is an Insured Depository Institution or an IAP of an Insured Depository Institution, in the Federal judicial district or territory in which the home office of the Insured Depository Institution is located.
(2) In a case where the person who is the subject of the action is not an Insured Depository Institution or an IAP of an Insured Depository Institution, the Federal judicial district or territory where the person who is the subject of the action resides, if the subject resides in the United States. If the subject of the action does not reside in the United States, the venue will be where the subject of the action conducts business or the Federal judicial district for the District of Columbia.
(3) For the purposes of paragraph (b)(1) of this section, a natural person is deemed to reside in the Federal judicial district where the natural person is domiciled. A person other than a natural person is deemed to reside in the Federal judicial district where it is headquartered or has its principal place of business.
(c)
(a) A person who is the subject of a final order issued after an administrative action commenced pursuant to this subpart may obtain judicial review of such order in accordance with the procedures set forth in section 8(h)(2) of the FDI Act (12 U.S.C. 1818(h)(2)).
(b) Petitions for review under this section may be filed in the court of appeals for the circuit where the hearing was held or the United States Court of Appeals for the District of Columbia Circuit.
No provision of this subpart shall be construed as barring any action otherwise available, under the laws or regulations of the United States or any state, to any Federal or state agency or person.
By order of the Board of Directors.
Federal Housing Finance Agency.
Final rule.
The Federal Housing Finance Agency (FHFA or the Agency) is adopting a final rule (final rule) that amends the Enterprise Regulatory Capital Framework (ERCF) by introducing new public disclosure requirements for the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac, and with Fannie Mae, each an Enterprise). The requirements include quantitative and qualitative disclosures related to risk management, corporate governance, capital structure, and capital requirements and buffers under the standardized approach.
This rule is effective August 1, 2022.
Andrew Varrieur, Senior Associate Director, Office of Capital Policy, (202) 649-3141,
On November 3, 2021, FHFA published in the
The public disclosure requirements in the final rule align with many of the public disclosure requirements for large banking organizations under the regulatory capital framework adopted by United States banking regulators (U.S. banking framework). Modern bank disclosure requirements were initially contemplated by the Basel Committee on Banking Supervision (BCBS) under Pillar 3 of Basel II in order to complement the minimum capital requirements and the supervisory review process and were later expanded with additional requirements in Basel III. In much the same way, the public disclosure requirements in the final rule will bolster the ERCF as it aims to ensure that each Enterprise operates in a safe and sound manner and is positioned to fulfill its statutory mission to provide stability and ongoing assistance to the secondary mortgage market across the economic cycle, in particular during periods of financial stress.
The final rule implements quantitative and qualitative disclosure requirements related to risk management, corporate governance, capital structure, statutory capital requirements, supplemental capital requirements, including risk-weighted assets calculated under the standardized approach, and capital buffers. In contrast to the U.S. banking framework, which has fewer requirements and buffers under the standard approach than under the advanced approaches, the ERCF requires the Enterprises to satisfy the same capital buffers and leverage requirements under the standard approach and under the advanced approaches. Therefore, the final rule adapts the public disclosure requirements in the U.S. banking framework to reflect the ERCF's standardized approach, blending elements from the U.S. banking framework's standardized and advanced approaches. While the final rule implements disclosure requirements for the ERCF's standardized approach only, FHFA may in the future consider additional disclosure requirements related to the advanced approaches.
In general, the final rule requires quarterly quantitative disclosures and annual qualitative disclosures, provided the Enterprises disclose any material changes to disclosure items as soon as practicable, and no later than the end of the next calendar quarter. As discussed below, Enterprises will publish on their websites their first public disclosure reports under the final rule in the first quarter of 2023. This timeframe will allow the Enterprises to establish the internal reporting and governance functions necessary to fulfill the disclosure requirements and will minimize duplicative reporting by aligning the schedule of annual qualitative disclosures with the Securities and Exchange Commission's (SEC) reporting schedule for Form 10-K.
The final rule balances the potential costs of disclosures with the many benefits, including the benefits of increased market discipline of the Enterprises. By allowing market participants to assess key information about the Enterprises' risk profiles and associated levels of capital, the final rule will promote transparency, increase the amount of information available to the public, and encourage sound risk management practices at the Enterprises. In doing so, the final rule will foster financial stability at the Enterprises and in the broader housing finance market both during and after the Enterprisers' conservatorships. However, enhanced public disclosures could be costly for the Enterprises. The final rule strikes an appropriate balance between the market benefits of disclosure and the additional financial burden to the Enterprises by permitting the Enterprises to fulfill many of the disclosure requirements by relying on similar disclosures made in accordance with accounting standards or SEC mandates. When an Enterprise fulfills a disclosure requirement using information provided in a different regulatory report, the Enterprise must provide a summary table that specifically indicates where the cross-referenced disclosures may be found and provide a reconciliation of regulatory capital elements as they relate to its balance sheet in any audited consolidated financial statements should there be differences between the accounting or other disclosures and the disclosures required under the final rule.
As proposed, the final rule also introduces a materiality concept for items not explicitly identified as required disclosures. The materiality concept is designed to ensure that improvements in public disclosures come not only from regulatory standards, but also as a result of efforts made by management at the Enterprises to communicate advances in risk management processes and internal reporting systems to public shareholders and other market participants. In a manner similar to the requirements for U.S. banking organizations, the final rule requires an Enterprise to decide which additional disclosures are relevant based on this materiality concept. Information is material if its omission or misstatement could change or influence the assessment or decision of a user relying on that information for the purpose of making investment decisions. Similarly, the final rule requires an Enterprise to have a formal disclosure policy approved by its board of directors that addresses the Enterprise's approach for determining which disclosures are necessary and appropriate. The policy must address internal controls, disclosure controls, and procedures.
FHFA received six public comment letters on the proposed rule.
However, one commenter expressed only measured support for the
In addition to comments directly related to the proposed amendments, FHFA also received several comments on other matters, such as the magnitude of funds remitted to the U.S. Department of the Treasury by the Enterprises relative to cumulative draws, the costs of owning or renting a home in the U.S., and the implications of mortgage originators selling their debt to other financial institutions. FHFA acknowledges the importance of these topics and will thoroughly consider the public's feedback on these issues when relevant rulemakings and policy decisions are under consideration.
The proposed rule would implement general requirements related to a formal disclosure policy, the concept of materiality, and fulfilling disclosure requirements by relying on other required public reports.
Market participants consider many factors when making their assessment of an Enterprise, including the Enterprise's risk profile and the techniques it uses to identify, measure, monitor, and control the risks to which the Enterprise is exposed. Accordingly, the proposed rule would require an Enterprise to have a formal disclosure policy approved by its board of directors that addresses the Enterprise's approach for determining which disclosures are necessary and appropriate. The policy would be required to address internal controls, disclosure controls, and procedures. The board of directors and senior management would ensure the appropriate review of the disclosures and that effective internal controls, disclosure controls, and procedures are maintained. One or more senior officers of the Enterprise would be required to attest that the disclosures meet the requirements of the proposed rule. The final rule adopts the requirements related to a formal disclosure policy as proposed.
For items not explicitly identified as required disclosures, the proposed rule would require an Enterprise to decide which additional disclosures are relevant based on a materiality concept. Information is material if its omission or misstatement could change or influence the assessment or decision of a user relying on that information for the purpose of making investment decisions. Through the implementation of a materiality concept, FHFA would encourage the management of each Enterprise to regularly review its public disclosures and enhance these disclosures, where appropriate, to clearly identify all significant risk exposures and their effects on the Enterprise's financial condition and performance, cash flow, and earnings potential. The final rule adopts the requirements related to the materiality concept as proposed.
To help mitigate the financial burden of public disclosures, the proposed rule would allow an Enterprise to fulfill some of the disclosure requirements by relying on similar disclosures made in accordance with accounting standards or SEC mandates. In addition, an Enterprise could use information provided in regulatory reports to fulfill the disclosure requirements. In these situations, an Enterprise would be required to provide a reconciliation of regulatory capital elements as they relate to its balance sheet in any audited consolidated financial statements should there be differences between the accounting or other disclosures and the disclosures required under the proposed rule. In addition, an Enterprise would be required to provide a summary table that specifically indicates where all the cross-referenced disclosures may be found. The final rule adopts, without change, the proposed requirements related to fulfilling disclosure requirements by relying on other required reports.
The proposed rule would require public disclosures related to the ERCF standardized approach across eleven categories, with each category containing qualitative disclosures and quantitative disclosures, with one exception. The categories are: (1) Capital structure; (2) capital adequacy; (3) capital buffers; (4) credit risk: general disclosures; (5) general disclosure for counterparty credit risk-related exposures; (6) credit risk mitigation; (7) credit risk transfers (CRT) and securitization; (8) equities; (9) interest rate risk for non-trading activities; (10) operational risk; and (11) tier 1 leverage ratio. The first 10 categories would require both quantitative and qualitative disclosures, while the required disclosures related to the tier 1 leverage ratio would be quantitative only. Many of the disclosures described within the categories are identical to the disclosures applicable to U.S. banking organizations subject to the standardized approach. Others have been modified to reflect the ERCF, such as those referring to statutory core capital and statutory total capital, adjusted total capital, the prescribed capital conservation buffer amount (PCCBA), and CRT. In addition, FHFA has excluded several disclosure items that are included in the U.S. banking framework for activities or categorizations not relevant in the ERCF, such as exposures to foreign banks, statutory multifamily mortgages, and high volatility commercial real estate (HVCRE).
The standardized approach in the ERCF differs broadly from the U.S. banking standardized approach in its inclusion of risk-weighted assets for operational risk and market risk, in its application of capital buffers, and in its application of leverage ratio requirements. In contrast to capital requirements for banking organizations subject to the standardized approach in the U.S. banking framework, the standardized approach in the ERCF requires an Enterprise to capitalize operational and market risks, to apply every component of the PCCBA including the countercyclical capital buffer, and to apply the same leverage ratio requirements and prescribed leverage buffer amount (PLBA) regardless of approach. Accordingly, the proposed rule would require an Enterprise to publicly disclose qualitative and quantitative information related to these items in the standardized approach.
Several of the proposed rule's qualitative disclosure requirements for operational risk pertain to the advanced measurement approach (AMA). These disclosures would include a description of the AMA, as well as a discussion of relevant internal and external factors considered in the Enterprise's measurement approach. Because the Enterprises are not required to implement the AMA approach until at least January 1, 2025, FHFA would expect the AMA-related disclosures to begin at the same time. Until then, the Enterprises are required to adhere to an operational risk capital requirement of 15 basis points of adjusted total assets.
Advanced approaches banking organizations must disclose information related to total leverage exposure (TLE) and the supplementary leverage ratio,
Many of the disclosure requirements for the standardized approach are also applicable to the advanced approach. For example, the disclosure items described within the categories for capital structure, PCCBA, PLBA, operational risk, and leverage would not differ conditional on whether an Enterprise's total risk-weighted assets are higher under the standardized approach or the advanced approach. Because these items are applicable to the standardized approach, the proposed rule would include disclosures related to these items within the disclosure requirements for the standardized approach.
The proposed rule would require an Enterprise to make the required disclosures publicly available for each of the last three years or such shorter time period beginning when the disclosure requirements come into effect. The public disclosure requirements are designed to provide important information to market participants on capital, risk exposures, risk assessment processes, and, thus, the capital adequacy of an Enterprise. Although the disclosure requirements are categorized into tables, the substantive content is the focus of the disclosure requirements, not the tables themselves. The proposed rule would require an Enterprise to make the disclosures described in tables 1 through 11 to § 1240.63.
Table 1 disclosures, “Capital Structure,” would provide summary information on the terms and conditions of the main features of regulatory capital instruments, which would allow for an evaluation of the quality of the capital available to absorb losses within an Enterprise. An Enterprise also would disclose the total amount of common equity tier 1, core, tier 1, total, and adjusted total capital, with separate disclosures for deductions and adjustments to capital.
Table 2 disclosures, “Capital Adequacy,” would provide information on an Enterprise's approach for categorizing and risk-weighting its exposures, as well as the amount of total risk-weighted assets. The table would also include common equity tier 1, tier 1, and adjusted total risk-based capital ratios.
Table 3 disclosures, “Capital Buffers,” would require an Enterprise to disclose the PCCBA, the PLBA, eligible retained income, and any limitations on capital distributions and certain discretionary bonus payments, as applicable.
One commenter recommended FHFA either clarify or remove the proposed requirement that an Enterprise discuss the differential effects, if any, the buffers have on an Enterprise's business by geographic breakdown. The commenter noted that the ERCF buffers are applied at the Enterprise-level, not by business line, and are based on adjusted total assets rather than risk-weighted assets. For these reasons, items that do vary by geographic region, such as house price appreciation, should have no differential impact on the capital buffers. In light of the commenter's recommendation and rationale, FHFA removed from the final rule the Table 3 line (a) requirement to discuss the differential effects, if any, the buffers have on an Enterprise's business by geographic breakdown.
Tables 4, 5, and 6 disclosures, related to credit risk, counterparty credit risk, and credit risk mitigation, respectively, would provide market participants with insight into different types and concentrations of credit risk to which an Enterprise is exposed and the techniques it uses to measure, monitor, and mitigate those risks. These disclosures are intended to enable market participants to assess the credit risk exposures of the Enterprise without revealing proprietary information.
Table 7 disclosures, “CRT and Securitization,” would provide information to market participants on the amount of credit risk transferred and retained by an Enterprise through CRT and securitization transactions, the types of products securitized by the Enterprise, the risks inherent in the Enterprise's securitized assets, the Enterprise's policies regarding credit risk mitigation, and the names of any entities that provide external credit assessments of a securitization. These disclosures would provide for a better understanding of how securitization transactions impact the credit risk of an Enterprise. To further facilitate that understanding, securitization transactions in which the originating Enterprise does not retain any securitization exposure would be shown separately and would only be reported for the year of inception.
One commenter recommended that certain required market risk disclosures from proposed §§ 1240.205(d)(7) and (d)(8) be relocated to this Table 7. These disclosures relate to the monitoring of changes in the credit risk of securitization positions and to the policy governing the use of credit risk mitigation to mitigate the risks of securitization and resecuritization positions. While FHFA agrees that these required disclosures are more appropriate to Table 7, FHFA determined that no additions to the table in the final rule were necessary given disclosure items (a)(4) and (a)(5) of Table 7, which adequately cover these topics.
Table 8 disclosures, “Equities,” would provide market participants with an understanding of the types of equity securities held by the Enterprise and how they are valued. The table would also provide information on the capital allocated to different equity products and the amount of unrealized gains and losses. (In comparison with bank holding companies subject to the Federal Reserve Board's Regulation Q, on which the proposed regulation was based, the types of equity securities that may be held by the Enterprises are limited. Their capital treatment is governed by 12 CFR 1240.51 and 1240.52.)
Table 9 disclosures, “Interest Rate Risk for Non-trading Activities,” would require an Enterprise to provide certain quantitative and qualitative disclosures regarding the Enterprise's management of interest rate risks.
Table 10 disclosures, “Operational Risk,” would require an Enterprise to provide certain qualitative disclosures regarding the advanced measurement approach, when applicable, and a description of the use of insurance for the purpose of mitigating operational risk. These disclosures would include a description of the AMA, as well as a discussion of relevant internal and external factors considered in the Enterprise's measurement approach.
Table 11 disclosures, “Tier 1 Leverage Ratio,” would provide information related to an Enterprise's adjusted total assets, including adjustments for fiduciary assets, derivative exposures, repo-style transactions, and off-balance sheet exposures. The table would also include an Enterprise's tier 1 leverage ratio. These disclosures are intended to enable market participants to assess the aggregate exposure to risk at an
The final rule adopts the disclosure requirements for the standardized approach substantially as proposed, with one adjustment to Table 3, as discussed above.
In § 1240.205, the proposed rule would require an Enterprise to make public disclosures related to market risk for covered positions under the standardized approach. These disclosures would provide quantitative and qualitative information related to an Enterprise's market risk profile, market risk valuation strategies, internal controls, and disclosure controls and procedures. The quantitative disclosures would detail exposure amounts and risk-weighted assets for material portfolios of covered positions, as well as on-balance sheet and off-balance sheet securitization positions by exposure type.
The proposed rule's market risk disclosure requirements would include a formal disclosure policy approved by an Enterprise's board of directors that addresses the Enterprise's approach for determining its market risk disclosures. The policy would address the associated internal controls and disclosure controls and procedures and would contain requirements related to the verification and attestation of disclosures and the maintaining of effective controls and procedures. The requirements would also include quarterly quantitative disclosures for each material portfolio of covered positions related to exposure and risk-weighted asset amounts as well as the aggregate amount of on-balance sheet and off-balance sheet securitization positions by exposure type.
In addition, an Enterprise would be required to make annual public disclosures for each material portfolio of covered positions related generally to portfolio composition and valuation policies, procedures, and methodologies. These disclosures would include, among other things, key valuation assumptions and information on significant changes, model characteristics used to calculate risk-weighted assets for market risk, and a description of the approaches used for validating and evaluating the accuracy of internal models and modeling processes. In addition, the annual disclosures would include a description of the Enterprise's processes for monitoring changes in the market risk of securitization positions.
As discussed above, one commenter recommended that certain credit risk disclosures in proposed §§ 1240.205(d)(7) and (d)(8) be relocated to a more appropriate section. FHFA determined that these disclosures, related to the monitoring of changes in the credit risk of securitization positions and to the policy governing the use of credit risk mitigation to mitigate the risks of securitization and resecuritization positions, were already present in Table 7 of § 1240.63. As a result, FHFA has removed reference to credit risk from proposed § 1240.205(d)(7) and deleted proposed § 1240.205(d)(8).
The final rule adopts the disclosure requirements for market risk under the standardized approach substantially as proposed, with adjustments to proposed §§ 1240.205(d)(7) and (d)(8), as discussed above.
The proposed rule would require the Enterprises to make quantitative disclosures on a quarterly basis, consistent with the disclosure requirements for most regulated financial institutions and frequently enough to capture most changes in risk profiles. The proposed rule would also require the Enterprises to make qualitative disclosures that provide a general summary of an Enterprise's risk-management objectives and policies, reporting system, and definitions may be disclosed annually. However, if a material change occurs, where for the purpose of these disclosure requirements a material change means a change such that the omission or misstatement of which could change or influence the assessment or decision of a user relying on that information for the purpose of making investment decisions, the proposed rule would require the Enterprises to disclose a brief discussion of this change and its likely impact as soon as practicable, and no later than the end of the next calendar quarter.
The proposed rule would also require that the disclosures be timely. As described above, an Enterprise may be able to fulfill some of the proposed disclosure requirements by relying on similar disclosures made in accordance with accounting standards or SEC mandates. FHFA acknowledges that timing of disclosures required under other federal laws, including disclosures required under the federal securities laws and their implementing regulations by the SEC, may not always align with the timing of required Enterprise disclosures. For this reason, the proposed rule described timely disclosures as being no later than the applicable SEC disclosure deadlines for the corresponding Form 10-K annual report at the end of a fiscal year and the corresponding Form 10-Q at the end of other calendar quarters. In cases where an Enterprise's fiscal year-end does not coincide with the end of a calendar quarter, FHFA would consider the timeliness of disclosures on a case-by-case basis. In some cases, management may determine that a material change has occurred, such that the most recent reported amounts do not reflect the Enterprise's capital adequacy and risk profile. In those cases, an Enterprise would need to disclose the general nature of these changes and briefly describe how they are likely to affect public disclosures going forward. An Enterprise would make these interim disclosures as soon as practicable after the determination that a material change has occurred.
The concept of timely disclosures was described in the preamble to the proposed rule, but not explicitly in the proposed rule itself. FHFA has determined to formalize the concept of timely disclosures in the final rule by adopting similar disclosure deadlines as those discussed above, while adding a short buffer of 10 business days. Therefore, the final rule adopts, without change, the proposed requirements related to the frequency of public disclosures and requires the proposed disclosure requirements to be made in a timely manner no later than 10 business days after an Enterprise files its corresponding Annual Report or Quarterly report on SEC Form 10-K or Form 10-Q, respectively.
The compliance date for the disclosure requirements under the proposed rule would be six months from the date of publication of the final rule in the
Upon consideration of the commenter's recommendation, the final rule adopts a compliance date for the new standardized approach disclosure requirements in §§ 1240.61 to 1240.63 and § 1240.205 of no later than 10 business days after an Enterprise files its Annual Report on SEC Form 10-K for the fiscal year ending December 31, 2022. This compliance date will align the new public disclosures with the reporting cycle for the Enterprises' Annual Reports, while providing a short buffer for the publication of an Enterprise's first disclosure report. Further, FHFA has determined that the costs to an Enterprise of producing a public disclosure report containing extensive qualitative disclosures one quarter before the Enterprise produces a public disclosure report where many of the same qualitative disclosures will likely be included by reference outweigh the benefits to investors and market participants of having the report one quarter earlier, in particular given the Enterprises' current significant capital deficits relative to capital requirements and buffers under the ERCF.
The proposed rule would also amend the reporting requirement compliance dates in § 1240.4(b) to remove references to parts of the ERCF that do not contain reporting requirements. Specifically, the proposed rule would remove references to compliance dates for reporting requirements in subparts C and G of 12 CFR 1240, §§ 1240.162(d) and 1240.204, as these parts do not contain reporting requirements. The proposed rule would retain without modification the January 1, 2022 compliance dates for reporting requirements outlined in §§ 1240.1(f) and 1240.41.
The final rule adopts, without change, the proposed amendments to other reporting requirement compliance dates in the ERCF.
The proposed rule would require an Enterprise to ensure that required disclosures are publicly available (for example, included on a public website) for each of the last three years or such shorter time period beginning when the proposed rule, if adopted as a final rule, comes into effect. In general, management of an Enterprise would have some discretion to determine the appropriate medium and location of the disclosures, provided the Enterprise meets the requirements related to cross-referencing described below. Furthermore, an Enterprise would have flexibility in formatting its public disclosures unless otherwise ordered by FHFA under its general authority to follow specific reporting guidelines or procedures, including potentially utilizing specified templates for certain quantitative disclosure elements. For example, FHFA may determine that standardizing the way the Enterprises present a subset of the required quantitative disclosures would facilitate the ability of market participants to compare attributes or results across Enterprises and better assess the risk profile and capital adequacy of each Enterprise. Conversely, there may be aspects of the required disclosures that cannot easily be standardized or where comparison across Enterprises may be less meaningful to market participants, such as descriptions of an Enterprise's risk management practices or certain analyses that contain bespoke risk metrics.
FHFA encourages each Enterprise to make all required disclosures available in one place on the Enterprise's public website, the address of which should be communicated in the Enterprise's regulatory report. However, the proposed rule would permit an Enterprise to provide the disclosures in more than one place, such as in its public financial reports (for example, in Management's Discussion and Analysis included in SEC filings) or other regulatory reports, as long as the Enterprise also provides a summary table on its public website that specifically indicates where all the disclosures may be found (for example, regulatory report schedules, page numbers in annual reports).
The proposed rule would require an Enterprise to reconcile disclosures of regulatory capital elements as the elements relate to an Enterprise's balance sheet in any audited consolidated financial statements. However, disclosures under the proposed rule which are not included in the footnotes to the audited financial statements would not be subject to external audit reports for financial statements or internal control reports from management and the external auditor. Therefore, the proposed rule would not introduce any new audit requirements, and under the proposed rule, the audit requirements for an Enterprise's required public disclosures would be identical to the audit requirements for a banking organization's required public disclosures in the U.S. banking framework.
The final rule adopts, without change, the proposed requirements related to the location of disclosures and audit requirements.
FHFA believes that the proposed disclosure requirements strike an appropriate balance between the need for meaningful disclosure and the protection of proprietary and confidential information. Accordingly, FHFA believes that an Enterprise would be able to provide all these disclosures without revealing proprietary and confidential information. Only in rare circumstances might the required disclosure of certain items of information compel an Enterprise to reveal confidential and proprietary information. In these unusual situations, FHFA proposed that if an Enterprise believes that disclosure of specific commercial or financial information would compromise its position by making public information that is either proprietary or confidential in nature, the Enterprise need not disclose those specific items. Instead, the Enterprise must disclose more general information about the subject matter of the requirement, together with the fact that, and the reason why, the specific items of information have not been disclosed. This provision would apply only to those disclosures included in the proposed rule and would not apply to disclosure requirements imposed by accounting standards or other regulatory agencies.
The final rule adopts the requirements related to proprietary and confidential information as proposed.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
In accordance with the Congressional Review Act (5 U.S.C. 801
Capital, Credit, Enterprise, Investments, Reporting and recordkeeping requirements.
For the reasons stated in the Preamble, under the authority of 12 U.S.C. 4511, 4513, 4513b, 4514, 4515-17, 4526, 4611-4612, 4631-36, FHFA amends part 1240 of title 12 of the Code of Federal Regulation as follows:
12 U.S.C. 4511, 4513, 4513b, 4514, 4515, 4517, 4526, 4611-4612, 4631-36.
(b)
(2) For any reporting requirement under §§ 1240.61 through 1240.63, the compliance date will be no later than 10 business days after an Enterprise files its Annual Report on SEC Form 10-K for the fiscal year ending December 31, 2022.
(3) For any reporting requirement under § 1240.205, the compliance date will be no later than 10 business days after an Enterprise files its Annual Report on SEC Form 10-K for the fiscal year ending December 31, 2022.
Sections 1240.61 through 1240.63 of this subpart establish public disclosure requirements related to the capital requirements and buffers described in subpart B and subpart G.
(a) An Enterprise must provide timely public disclosures each calendar quarter of the information in the applicable tables in § 1240.63, where for the purpose of these disclosure requirements timely means no later than 10 business days after an Enterprise files its corresponding Annual Report on SEC Form 10-K at the end of a fiscal year or its corresponding Quarterly Report on SEC Form 10-Q at the end of other calendar quarters. If a material change occurs, where for the purpose of these disclosure requirements a material change means a change such that the omission or misstatement of which could change or influence the assessment or decision of a user relying on that information for the purpose of making investment decisions, then an Enterprise must disclose a brief discussion of this change and its likely impact as soon as practicable thereafter, and no later than the end of the next calendar quarter. Qualitative disclosures that have not changed from the prior quarter may be omitted from the next quarterly disclosure but must be disclosed at least annually after the end of the fourth calendar quarter.
(b) Unless otherwise directed by FHFA, the Enterprise's management may provide all of the disclosures required by §§ 1240.61 through 1240.63 in one place on the Enterprise's public website or may provide the disclosures in more than one public financial report or other regulatory reports, provided that the Enterprise publicly provides a summary table specifically indicating the location(s) of all such disclosures.
(c) An Enterprise must have a formal disclosure policy approved by the board of directors that addresses its approach for determining the disclosures it makes. The policy must address the associated internal controls and disclosure controls and procedures.
(d) The Enterprise's board of directors and senior management are responsible for establishing and maintaining an effective internal control structure over the disclosures required by this subpart, and must ensure that appropriate review of the disclosures takes place. The Chief Risk Officer and the Chief Financial Officer of the Enterprise must attest that the disclosures meet the requirements of this subpart.
(e) If an Enterprise believes that disclosure of specific commercial or financial information would prejudice seriously its position by making public certain information that is either proprietary or confidential in nature, the Enterprise is not required to disclose these specific items but must disclose more general information about the subject matter of the requirement, together with the fact that, and the reason why, the specific items of information have not been disclosed.
(a) Except as provided in § 1240.62, an Enterprise must make the disclosures described in Tables 1 through 11 of this section publicly available for each of the last three years (that is, twelve quarters) or such shorter period until an Enterprise has made twelve quarterly disclosures pursuant to this part beginning with the disclosure for the quarter ending December 31, 2022.
(b) An Enterprise must publicly disclose each quarter the following:
(1) Regulatory capital ratios for common equity tier 1 capital, additional tier 1 capital, tier 1 capital, tier 2 capital, total capital, core capital, and adjusted total capital, including the regulatory capital elements and all the regulatory adjustments and deductions needed to calculate the numerator of such ratios;
(2) Total risk-weighted assets, including the different regulatory adjustments and deductions needed to calculate total risk-weighted assets; and
(3) A reconciliation of regulatory capital elements as they relate to its balance sheet in any audited consolidated financial statements.
(c) For each separate risk area described in Tables 4 through 9, the Enterprise must, as a general qualitative disclosure requirement, describe its risk management objectives and policies, including: Strategies and processes; the structure and organization of the relevant risk management function; the scope and nature of risk reporting and/or measurement systems; policies for hedging and/or mitigating risk and strategies and processes for monitoring the continuing effectiveness of hedges and/or mitigants.
(a)
(b)
(c)
(d)
(i) Exposure amounts for each product type included in covered positions as described in § 1240.202; and
(ii) Risk-weighted assets for each product type included in covered positions as described in § 1240.202.
(2) In addition, the Enterprise must disclose publicly the aggregate amount of on-balance sheet and off-balance sheet securitization positions by exposure type at least quarterly.
(e)
(1) The composition of material portfolios of covered positions;
(2) The Enterprise's valuation policies, procedures, and methodologies for covered positions including, for securitization positions, the methods and key assumptions used for valuing such positions, any significant changes since the last reporting period, and the impact of such change;
(3) The characteristics of the internal models used for purposes of this subpart;
(4) A description of the approaches used for validating and evaluating the accuracy of internal models and modeling processes for purposes of this subpart;
(5) For each market risk category (that is, interest rate risk, credit spread risk, equity price risk, foreign exchange risk, and commodity price risk), a description of the stress tests applied to the positions subject to the factor;
(6) The results of the comparison of the Enterprise's internal estimates for purposes of this subpart with actual outcomes during a sample period not used in model development; and
(7) A description of the Enterprise's processes for monitoring changes in the market risk of securitization positions, including how those processes differ for resecuritization positions.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. This AD was prompted by reports of a missing shim at a joint common to the main torque box (MTB) skin panel and rear spar root fitting. This AD requires inspecting the MTB skin panel and rear spar root fitting for cracking and delamination, and applicable on-condition actions. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective July 7, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 7, 2022.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket at
Joseph Hodgin, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3962; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the
The FAA received comments from Air Line Pilots Association, International (ALPA), Boeing, an individual, and United Airlines, who supported the NPRM without change.
The FAA received additional comments from Avianca Airlines. The following presents the comments received on the NPRM and the FAA's response to each comment.
Avianca Airlines (AVA) proposed that paragraph (h) of the proposed AD be revised to require an 8100-9 approval form, rather than an AMOC, for a repair after contacting Boeing. AVA stated that the time delay required to obtain an AMOC letter affects the operational return to service of the affected aircraft and that an 8100-9 form is already an approved document that certifies compliance with airworthiness standards.
The FAA does not agree with this request. An FAA Form 8100-9, which is both a repair data approval and AMOC approval, may be issued by the Boeing Company Organization Designation Authorization (ODA), provided it has been authorized by the Manager, Seattle ACO Branch, FAA, as required by paragraph (i)(3) of this AD. If the ODA does not have authorization from the Manager, Seattle ACO Branch, FAA, then a separate AMOC approval is required. This AD has not been changed with regard to this request.
AVA requested that the proposed AD be revised to allow later approved revisions of Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021, to be used for compliance with the proposed AD.
The FAA does not agree with the request to allow later approved revisions. The FAA may not refer to any document that does not yet exist in an AD. In general terms, the FAA is required by Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference, as specified in 1 CFR 51.1(f), to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as referenced material, in which case the FAA may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for incorporation by reference. See 1 CFR part 51.
To allow operators to use later revisions of the referenced document (issued after publication of the AD), either the FAA must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with this AD under the provisions of paragraph (i) of this AD.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021. This service information specifies procedures for an ultrasonic test for cracking and delamination of the skin panel, an open hole high frequency eddy current (HFEC) inspection for cracking of the rear spar root fitting at the fastener holes common to the MTB skin panel and rear spar root fitting interface, and a surface HFEC inspection for cracking of visible rear spar root fitting surface areas, and applicable on-condition actions. On-condition actions include measurement of the gap between the MTB skin panel and the rear spar flange, installation of a new shim between the MTB skin panel and the rear spar flange, and installation of new fasteners in the MTB skin panel and the rear spar flange. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD affects 91 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary measurements and installations that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these actions:
The FAA has received no definitive data on which to base the cost estimates for the repairs specified in this AD.
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective July 7, 2022.
None.
This AD applies to The Boeing Company Model 787-8, 787-9, and 787-10 airplanes, certificated in any category, as specified in Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021.
Air Transport Association (ATA) of America Code 55, Stabilizers.
This AD was prompted by reports of a missing shim at a joint common to the main torque box (MTB) skin panel and rear spar root fitting. The FAA is issuing this AD to address the omission of a shim between the MTB skin panel and rear spar flange at the attachment to the root fitting. This condition, if not addressed, could result in a reduction in fatigue performance of the MTB skin panel and rear spar root fittings, which could affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021.
Where Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021, specifies contacting Boeing for repair instructions: This AD requires doing the repair before further flight using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Joseph Hodgin, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3962; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin B787-81205-SB550011-00 RB, Issue 001, dated May 18, 2021.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA,
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving several revisions to the New York State Implementation Plan (SIP) meant to result in emission reductions that will help attain and maintain the national ambient air quality standards (NAAQS) for particulate matter (PM) and ozone. These SIP revisions consist of amendments to several existing regulations outlined within New York's Codes, Rules, and Regulations that implement control measures for sources of PM and oxides of nitrogen (NO
This final rule is effective on July 5, 2022.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2021-0572. All documents in the docket are listed on the
Fausto Taveras, Environmental Protection Agency, Region 2, Air Programs Branch, 290 Broadway, New York, New York 10007-1866, at (212) 637-3378, or by email at
The supplementary information section is arranged as follows:
On January 28, 2022, the EPA published a Notice of Proposed Rulemaking that proposed to approve revisions to the New York SIP submitted by the State of New York on February 3, 2021 and October 15, 2020.
The specific details of New York's SIP submittals and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's January 28, 2022, proposed rulemaking.
In response to EPA's January 28, 2022 proposed rulemaking on New York's SIP revisions, the EPA received three comments during the 30-day public comment period. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2021-0572 on the
Two public comments received on February 14, 2022, were submitted by one anonymous commenter. Both comments are substantially similar and support the EPA's proposed approval of New York's SIP revisions. Both comments state that the revisions to 6 NYCRR Part 219 and Part 222 are necessary to, “. . . make sure that an increase in PM and NO
The EPA acknowledges the commenter's support of the EPA's proposed rule. The EPA also recognizes the commenter's request for the EPA to reevaluate and revisit the Ozone levels outline within the 2008 and 2015 Ozone NAAQS. While this issue is outside the scope of the present action, we note that on December 23, 2020, the EPA announced a decision to retain, without changes, the 2015 Ozone NAAQS (December 23, 2020 Decision).
The Midwest Ozone Group (MOG) submitted comments on February 28, 2022, that urged the EPA to require New York to impose all emission controls for Distributed Generation Sources (DG Sources) units by 2023, instead of the adopted 2025 final phase year. MOG stated that a 2023 implementation timeframe will be consistent with the nonattainment obligations of the NYMA. MOG also provided details on how NO
1. EPA has recognized the critical need to regulate NO
2. In 2023, the only remaining ozone NAAQS nonattainment monitors in the Northeast are located in the Connecticut portion of the NYMA.
3. It has been well-established that residual nonattainment in Connecticut and the NYMA is being caused by sources that include DG Sources units in New York.
4. EPA should not allow New York to delay the implementation of those controls beyond the moderate nonattainment date for the 2015 ozone NAAQS.
MOG's comment letter also included: (1) Presentation slides distributed by the EPA on the analysis of ozone trends in the east in relation to interstate transport, (2) and a data analysis presentation conducted by the Stationary and Area Source Committee on high emitting Electric Generating Units during High Electric Demand Days throughout states within the Ozone Transport Region. MOG referred to these attachments in its comments on EPA's proposed action.
In this action, EPA is approving New York's rules into the state's SIP as a SIP strengthening measure. This action is not intended to satisfy specific nonattainment planning obligations under the Clean Air Act. Rather, EPA is approving these New York regulations into the SIP pursuant to CAA section 110(k)(3), which states that EPA “shall approve [a SIP] submittal as a whole if it meets all the applicable requirements of this chapter.” Because this SIP revision relates to criteria pollutants and strengthens the preexisting requirements in the New York SIP, EPA has determined it is appropriate to approve the SIP revision.
EPA finds no basis, and the commenter has not provided one, to disapprove New York's submittal solely on grounds related to the timing of the regulations at issue in relation to the attainment dates. There are multiple separate nonattainment obligations that apply to New York pursuant to subpart 2 of part D of title I of the CAA, including requirements related to ensuring nonattainment areas attain the NAAQS by the applicable attainment date. EPA acknowledges that the State of New York has unmet attainment planning obligations for the NYMA nonattainment area. The EPA makes no finding in this action that New York has satisfied those obligations and does not make any finding as to whether the regulations approved through this action would be sufficient to meet separate nonattainment planning obligations. EPA action on any SIP revision submitted by New York to meet nonattainment planning requirements would be a separate rulemaking with an opportunity for public comment.
The EPA considers comments related to interstate transport obligations under CAA section 110(a)(2)(D)(i)(I) to be beyond the scope of this action. The EPA's actions addressing interstate transport under the 2008 and 2015 ozone NAAQS are separate rulemakings with their own comment periods and the separate availability of judicial review. The EPA will not address comments in this action that are unrelated to this action.
The EPA also reviewed NYSDEC's SIP revision to examine if similar comments were presented during the department's assessment of public comments for the proposal of Part 222. Representatives from energy management and sustainable energy organizations each submitted comments that requested NYSDEC to provide additional justification for why DG Sources need to be considered an economic dispatch source to be subject to the control requirements in Part 222. The commentors questioned why the adopted rule would not apply to distributed generation sources that provide electricity to power equipment or structures not served by distribution utilities and stated that these DG Sources not connected to the electrical grid could run fossil fuel-fired generators without any restrictions under Part 222. NYSDEC responded to the comments by stating that the purpose of Part 222 is to address and reduce emissions from emergency engines used in non-emergency applications, which include DG Sources classified as economic dispatch sources. Within NYSDEC's SIP revision of Part 222, the department also stated that sources that are not connected to the grid, which are not subject to Part 222, will be subject to 6 NYCRR Part 201, “Permits and Registrations”.
NYSDEC also stated that it consulted with stakeholders including the New York Independent System Operator (NYISO), to develop a rule that improves air quality while maintaining a reliable electric grid. Therefore, NYSDEC chose the 2021 and 2025 timeframes to strike a balance in improving air quality and maintaining electric grid reliability. NYSDEC also factored in the time for owners or operators applicable to Part 222 to replace their DG Sources with sources that are at least model year 2000 or retrofit their sources with the required control technology. NYSDEC also factored in the time demands for permitting requirements and emission testing and believes that the compliance schedule in the regulation is appropriate.
NYSDEC has also revised Part 222 to add subdivision 222.4(c), which establishes up to a two-year extension to the 2021 and 2025 compliance dates in cases where owners or operators can
This concludes our response to the comments received. No changes have been made to the proposed rule as a result of the comments received.
The EPA is approving as SIP strengthening measures New York's SIP revision submittals, dated February 3, 2021, and October 15, 2020, for the purpose of incorporating the revisions made to 6 NYCRR Subpart 219, “Incinerators”, and 6 NYCRR Part 222, “Distributed Generation Sources”, with a state effective date of March 14, 2020, and March 25, 2020, respectively. The EPA is also approving the attendant revisions made to Part 200, Subpart 200.9, “General Provisions, Referenced material”. The EPA evaluated New York's submittals for consistency with the Clean Air Act, EPA regulations, and EPA policy. The EPA finds that these submissions strengthen New York's Ozone and PM SIPs.
In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of 6 NYCRR Part 200, Subpart 200.9, “General Provisions, Referenced material”, Part 219, “Incinerators”, and Part 222, “Distributed Generation Sources”, as described in Section I of this preamble and set forth below in the amendments to 40 CFR part 52. The EPA has made and will continue to make these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993), and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose any 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 August 1, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen Dioxide, Intergovernmental Relations, Incorporation by Reference, Ozone, Particulate matter, Reporting and recordkeeping requirements, Waste treatment and disposal.
42 U.S.C. 7401
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collections associated with the rules adopted in the
The amendments to §§ 25.701(d), 25.702(b), 73.1943, and 76.1701, published at 87 FR 7748, February 10, 2022, are effective July 5, 2022.
Kathy Berthot,
This document announces that OMB approved the information collection requirements in §§ 25.701(d), 25.702(b), 73.1943(a) and (b), and 76.1701(a) and (b) on May 20, 2022. These rules were modified in the
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on May 20, 2022, for the information collection requirements contained in §§ 25.701(d), 25.702(b), 73.1943(a) and (b), and 76.1701(a) and (b). Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers for the information collection requirements in these rules are 3060-0214 and 3060-1207.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Pursuant to 47 CFR 73.1943 and 76.1701, each broadcast station licensee and each cable television system is required to maintain in its online political file a complete record of any request to purchase broadcast and cablecast time that is made by or on behalf of a candidate for public office, or that communicates a message relating to any political matter of national importance, including a legally qualified candidate, any election to Federal office, or a national legislative issue of public importance. Such records must include information regarding: (1) Whether the request to purchase broadcast or cablecast time is accepted or rejected by the broadcast licensee or cable television system operator; (2) the rate charged for the broadcast or cablecast time; (3) the date and time on which the communication is aired; (4) the class of time that is purchased; (5) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); (6) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and (7) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. In addition, when free time is provided for use by or on behalf of candidates, a record of the free time provided must be placed in the political file. These records must be placed in the political file as soon as possible and retained for a period of two years.
All other information collection requirements contained under 47 CFR 73.1212, 73.3526, 73.3527, 73.1943, and 76.1701 are still a part of the information collection and remain.
Pursuant to 47 CFR 25.701(d) and 25.702(b), each DBS provider and each SDARS licensee is required to maintain in its online political file a complete record of any request to purchase airtime that is made by or on behalf of a candidate for public office, or that communicates a message relating to any political matter of national importance, including a legally qualified candidate, any election to Federal office, or a national legislative issue of public importance. Such records must include information regarding: (1) Whether the request to purchase airtime is accepted or rejected by the DBS provider or SDARS licensee; (2) the rate charged for the airtime; (3) the date and time on which the communication is aired; (4) the class of time that is purchased; (5) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); (6) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and (7) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. In addition, when free time is provided for use by or on behalf of candidates, a record of the free time provided must be placed in the political file. These records must be placed in the political file as soon as possible and retained for a period of two years.
All other information collection requirements contained under 47 CFR 25.701 and 25.702 are still a part of the information collection and remain unchanged since last approved by OMB. This information collection (OMB 3060-1207) also consolidates the information collections in OMB 3060-1065, OMB 3060-1212, and the portion of OMB 3060-0214 which related to SDARS licensees to eliminate duplication and inconsistencies between these information collections. OMB 3060-1065 and OMB 3060-1212 will be discontinued.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to implement the 2022 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan, the Magnuson-Stevens Fishery
Effective June 2, 2022.
This final rule is accessible via the internet at the Office of the Federal Register website at
Colin Sayre, phone: 206-526-4656, and email:
The transboundary stock of Pacific whiting is managed through the Agreement Between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting of 2003 (Agreement). The Agreement establishes bilateral management bodies to implement the terms of the Agreement, including the Joint Management Committee (JMC), which recommends the annual catch level for Pacific whiting. NMFS issued a proposed rule on April 13, 2022 (87 FR 21858) that describes the Agreement, including the establishment of F-40 percent default harvest rate, the explicit allocation of Pacific whiting coastwide total allowable catch (TAC) to the United States (73.88 percent) and Canada (26.12 percent), the bilateral bodies to implement the terms of the Agreement, including the Joint Management Committee (JMC), and the process used to determine the coastwide TAC under the Agreement. The proposed rule also proposed allocating 17.5 percent of the U.S. TAC of Pacific whiting for 2021 to Pacific Coast Indian tribes that have a treaty right to harvest groundfish, and implementing set-asides (750 metric tons (mt)) for Pacific whiting for research and incidental mortality in other fisheries.
The Treaty's Advisory Panel (AP) and JMC met virtually March 1-3, 2022, to develop advice on a 2022 coastwide TAC. The AP provided its 2022 TAC recommendation to the JMC on March 2, 2022.
The Agreement directs the JMC to base the catch limit recommendation on the default harvest rate unless scientific evidence demonstrates that a different rate is necessary to sustain the offshore Pacific whiting resource. After consideration of the 2022 stock assessment and other relevant scientific information, the JMC did not use the default harvest rate, and instead agreed on a more conservative approach. There were two primary reasons for choosing a TAC well below the level of F-40 percent. First, the JMC noted the increasing age of the 2010, 2014, and 2016 year classes and wished to extend access to these stocks as long as possible, which a lower TAC could accomplish. Second, there is uncertainty regarding the size of the 2020 year class. Maintaining a modest TAC for 2022 was deemed prudent by the JMC until an additional year of data is available on the size of the 2020 year class. This conservative TAC setting process, endorsed by the AP, resulted in a TAC that is less than what it would be using the default harvest rate under the Agreement.
The JMC agreed on a recommended coastwide TAC of 545,000 mt, of Pacific whiting, which resulted in a U.S. TAC of 402,646 mt (73.88 percent of 545,000 mt). This recommendation is consistent with the best available scientific information, provisions of the Agreement, and the Whiting Act. The recommendation was transmitted via letter to the United States and Canadian Governments on March 3, 2022. NMFS, under delegation of authority from the Secretary of Commerce, approved the TAC recommendation of 402,646 mt for U.S. fisheries on March 25, 2022.
This final rule announces the U.S. TAC of 402,646 mt, and implements the domestic 2022 Pacific whiting harvest specifications, including, the 2022 tribal allocation of 70,463 mt, the preliminary allocations for three non-tribal commercial whiting sectors, and set-asides for incidental mortality in research activities and non-groundfish fisheries. The tribal and non-tribal allocations for Pacific whiting, as well as set-asides, are effective until December 31, 2022.
This final rule establishes the tribal allocation of Pacific whiting for 2022 as described in the proposed rule (87 FR 21858). Since 1996, NMFS has been allocating a portion of the U.S. TAC of Pacific whiting to the tribal fishery. Regulations for the Pacific Coast Groundfish Fishery Management Plan (FMP) specify that the tribal allocation is subtracted from the total U.S. Pacific whiting TAC. The tribal Pacific whiting fishery is managed separately from the non-tribal Pacific whiting fishery and is not governed by limited entry or open access regulations or allocations. NMFS is establishing the 2022 tribal allocation as 70,463 mt (17.5 percent of the U.S. TAC) in this final rule.
In 2009, NMFS, the states of Washington and Oregon, and the tribes with treaty rights to harvest Pacific whiting started a process to determine the long-term tribal allocation for Pacific whiting; however, no long-term allocation has been determined. While new scientific information or discussions with the relevant parties may impact that decision, the best available scientific information to date suggests that 70,463 mt is within the likely range of potential treaty right amounts. As with prior tribal Pacific whiting allocations, this final rule is not intended to establish precedent for future Pacific whiting seasons, or for the determination of the total amount of Pacific whiting to which the Tribes are entitled under their treaty right. Rather, this rule adopts an interim allocation. The long-term tribal treaty amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and the states of Washington and Oregon.
The U.S. non-tribal whiting fishery is managed under the Council's Pacific Coast Groundfish FMP. Each year, the Council recommends a set-aside of Pacific whiting to accommodate incidental mortality of the fish in research activities and non-groundfish fisheries based on estimates of scientific research catch and estimated bycatch mortality in non-groundfish fisheries. At its November 2021 meeting, the Council recommended an incidental mortality set-aside of 750 mt for 2022. This set-aside is unchanged from the 750 mt set-aside amount for incidental mortality in 2021 and reflects the recent average mortality that has declined from 942 mt in 2014-2016 to 216 mt in 2017-2019.
This final rule implements the fishery harvest guideline (HG), also called the non-tribal allocation as described in the proposed rule published on April 13, 2022 (87 FR 21858). The 2022 fishery HG for Pacific whiting is 331,433 mt. This amount was determined by deducting the 70,463 mt tribal allocation and the 750 mt allocation for scientific research catch and fishing mortality in non-groundfish fisheries from the U.S. TAC of 402,646 mt. The regulations further allocate the fishery HG among the three non-tribal sectors of the Pacific whiting fishery: The catcher/processor (C/P) Co-op Program, the Mothership (MS) Co-op Program, and the Shorebased Individual Fishing Quota (IFQ) Program. The C/P Co-op Program is allocated 34 percent (112,687 mt for 2022), the MS Co-op Program is allocated 24 percent (79,544 mt for 2022), and the Shorebased IFQ Program is allocated 42 percent (139,202 mt for 2022). The fishery south of 42° N lat. may not take more than 6,960 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 15, the start of the primary Pacific whiting season north of 42° N lat.
This rule would be implemented under the statutory and regulatory authority of section 305(d) of the Magnuson-Stevens Act, the Pacific Whiting Act of 2006, the regulations governing the groundfish fishery at 50 CFR 660.5—660.360, and other applicable laws. Additionally, with this final rule, NMFS, will ensure that the fishery is managed in a manner consistent with treaty rights of four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens.
NMFS issued a proposed rule on April 13, 2022 (87 FR 21858). The comment period on the proposed rule closed April 28, 2022. No comments were received during the public comment period.
NMFS has not made any changes to the proposed regulatory text and there are no substantive changes from the proposed rule.
The Administrator, West Coast Region, NMFS, determined that the final rule is necessary for the conservation and management of the Pacific whiting and that it is consistent with section 305(d), and other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Coast Groundfish FMP, and other applicable laws.
Pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in the date of effectiveness for this final rule because such a delay would be contrary to the public interest. If this final rule were delayed by 30 days, Pacific coast whiting fishermen would not be able to fish under the final catch limits for Pacific whiting for that time period, and not be able to realize the full level of economic opportunity this rule provides. Waiving the 30-day delay in the date of effectiveness will allow this final rule to more fully benefit the fishery through increased fishing opportunities as described in the preamble of this rule.
In addition, because this rule increases catch limits for Pacific whiting compared to the interim allocation the fishery is currently operating under, it therefore also falls within the 5 U.S.C. 553(d)(1) exception to the 30-day delay in the date of effectiveness requirement. The Pacific whiting fishery season began fishing on May 15, 2022 under interim allocations based on the lowest coastwide TAC considered in the proposed rule. This final rule implements a higher TAC for Pacific whiting than the interim allocation provided prior to the season opening, and implementing the rule upon publication provides the whiting fleet more opportunity and greater flexibility to harvest the optimal yield.
Waiving the 30-day delay in effectiveness will not have a negative impact on any entities, as there are no new compliance requirements or other burdens placed on the fishing community with this rule. Making this rule effective immediately would also serve the best interests of the public because it will allow for the longest possible fishing season for Pacific whiting and therefore the best possible economic outcome for those whose livelihoods depend on this fishery. Because the 30-day delay in effectiveness would potentially cause significant financial harm without providing any corresponding benefits, this final rule is effective upon publication in the
The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866.
A range of potential harvest levels for Pacific whiting have been considered under the Final Environmental Impact Statement for Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods thereafter (2015/16 FEIS). The 2015/16 FEIS examined the harvest specifications and management measures for 2015-16 and 10 year projections for routinely adjusted harvest specifications and management measures. The 10 year projections were produced to evaluate the impacts of the ongoing implementation of harvest specifications and management measures and to evaluate the impacts of the routine adjustments that are the main component of each biennial cycle. The Environmental Assessment for Amendment 29 to the Pacific Coast Groundfish Fishery Management Plan and 2021-22 Harvest Specifications and Management Measures (2021-22 EA) for the 2021-22 cycle tiers from the 2015/16 FEIS and focuses on the harvest specifications and management measures for Pacific coast groundfish stocks that were not within the scope of the 10 year projections in the 2015/16 FEIS. The 2015/16 FEIS and 2021-22 EA are available from NMFS (see
NMFS issued a proposed rule on April 13, 2022 (87 FR 21858), for the 2022 Harvest Specifications for Pacific Whiting, and 2022 tribal allocation for Pacific whiting. An Initial Regulatory Flexibility Analysis (IRFA) was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the revised proposed rule ended on April 28, 2022. NMFS did not receive any public comments on the revised proposed rule. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments on the IRFA or the proposed rule. The description of this action, its
Under the Regulatory Flexibility Act (RFA), the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration has established size criteria for entities involved in the fishing industry that qualify as small businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts, not in excess of $11 million for all its affiliated operations worldwide (see 80 FR 81194, December 29, 2015). A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A small organization is any nonprofit enterprise that is independently owned and operated and is not dominant in its field. Effective February 26, 2016, a seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide (See NAICS 311710 at 81 FR 4469; January 26, 2016). For purposes of rulemaking, NMFS is also applying the seafood processor standard to catcher processors because whiting C/Ps earn the majority of the revenue from processed seafood product.
No public comments were received on the proposed rule.
This final rule announces the coastwide TAC and U.S. TAC and allocates Pacific whiting to the following sectors/programs: Tribal, Shorebased IFQ Program Trawl Fishery, MS Coop Program Whiting At-sea Trawl Fishery, and C/P Coop Program Whiting At-sea Trawl Fishery. The amount of Pacific whiting allocated to these sectors is based on the U.S. TAC.
We expect one tribal entity to fish for Pacific whiting in 2022. Tribes are not considered small entities for the purposes of RFA. Impacts to tribes are nevertheless considered in this analysis.
As of January 2022, the Shorebased IFQ Program is composed of 164 Quota Share permits/accounts (134 of which were allocated whiting quota pounds), and 35 first receivers, one of which is designated as whiting-only receivers and 11 that may receive both whiting and non-whiting.
These regulations also directly affect participants in the MS Co-op Program, a general term to describe the limited access program that applies to eligible harvesters and processors in the MS sector of the Pacific whiting at-sea trawl fishery. This program consists of six MS processor permits, and a catcher vessel fleet currently composed of a single co-op, with 34 Mothership/Catcher Vessel (MS/CV) endorsed permits (with three permits each having two catch history assignments).
These regulations also directly affect the C/P Co-op Program, composed of 10 C/P endorsed permits owned by three companies that have formed a single coop. These co-ops are considered large entities from several perspectives; they have participants that are large entities, and have in total more than 750 employees worldwide including affiliates.
Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. As part of the permit application processes for the non-tribal fisheries, based on a review of the Small Business Administration size criteria, permit applicants are asked if they considered themselves a “small” business, and they are asked to provide detailed ownership information. Data on employment worldwide, including affiliates, are not available for these companies, which generally operate in Alaska as well as the West Coast and may have operations in other countries as well. NMFS has limited entry permit holders self-report size status. For 2021, all 10 C/P permits reported they are not small businesses, as did 8 mothership catcher vessels. There is substantial, but not complete overlap between permit ownership and vessel ownership so there may be a small number of additional small entity vessel owners who will be impacted by this rule. After accounting for cross participation, multiple Quota Share account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these proposed regulations, 89 of which are considered “small” businesses.
This rule will allocate Pacific whiting between tribal and non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries consist of a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests may be delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportionment process. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, in 2021 NMFS reapportioned 34,645 mt of the original 64,645 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year. The reapportioning process allows unharvested tribal allocations of Pacific whiting to be fished by the non-tribal fleets, benefitting both large and small entities. The revised Pacific whiting allocations for 2021 following the reapportionment were: Tribal 30,000 mt, C/P Co-op 115,141 mt; MS Co-op 81,275 mt; and Shorebased IFQ Program 142,232 mt.
The prices for Pacific whiting are largely determined by the world market because most of the Pacific whiting harvested in the United States is exported. The U.S. Pacific whiting TAC is highly variable, as have subsequent harvests and ex-vessel revenues. For the years 2016 to 2020, the total Pacific whiting fishery (tribal and non-tribal) averaged harvests of approximately 303,782 mt annually. The 2021 U.S. non-tribal fishery had a Pacific whiting catch of approximately 268,926 mt, and the tribal fishery landed less than 3,000 mt.
Impacts to the U.S. non-tribal fishery are measured with an estimate of ex-vessel revenue. The coastwide TAC of 545,000 mt would result in an U.S. TAC of 402,646 mt and, after deduction of the tribal allocation and the incidental catch set-aside, a U.S. non-tribal harvest guideline of 331,433 mt. Using the 2021 weighted-average non-tribal price per
Impacts to tribal catcher vessels who elect to participate in the tribal fishery are measured with an estimate of ex-vessel revenue. In lieu of more complete information on tribal deliveries, total ex-vessel revenue is estimated with the 2021 average ex-vessel price of Pacific whiting, which was $221.15 per mt. At that price, the proposed 2022 tribal allocation of 70,463 mt would have an ex-vessel value of $15.58 million.
For the allocations to the non-tribal commercial sectors the Pacific whiting tribal allocation, and set-asides for research and incidental mortality NMFS considered two alternatives: “No Action” and the “Proposed Action.”
Under the no action alternative, NMFS would not implement allocations to the non-tribal sectors based on the JMC recommended U.S. TAC, which would not fulfill NMFS' responsibility to manage the U.S. fishery. This is contrary to the Whiting Act and Agreement, which requires sustainable management of the Pacific whiting resource, therefore this alternative received no further consideration.
Under the no action alternative, NMFS would not implement the set-aside amount of 750 mt recommended by the Council. Not implementing set-asides of the US whiting TAC would mean incidental mortality of the fish in research activities and non-groundfish fisheries would not be accommodated. This would be inconsistent with the Council's recommendation, the Pacific Groundfish Fishery Management Plan, the regulations setting the framework governing the groundfish fishery, and NMFS' responsibility to manage the fishery. Therefore the no action alternative received no further consideration.
NMFS did not consider a broader range of alternatives to the proposed tribal allocation because the tribal allocation is a percentage of the U.S. TAC and is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for Pacific whiting. Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5 percent, as requested by the Tribes. This would yield a tribal allocation of 70,463 mt for 2022. Consideration of a percentage lower than the tribal request of 17.5 percent is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the Tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.
Under the no action alternative, NMFS would not make an allocation to the tribal sector. This alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, the no action alternative would result in no allocation of Pacific whiting to the tribal sector in 2022, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the Tribes' treaty rights. Given that there is a tribal request for allocation in 2022, this alternative received no further consideration.
NMFS determined this proposed rule would not adversely affect small entities. The reapportioning process allows unharvested tribal allocations of Pacific whiting, fished by small entities, to be fished by the non-tribal fleets, benefitting both large and small entities.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. A small entity compliance guide will be sent to stakeholders, and copies of the final rule and guides (
With this final rule, NMFS, acting on behalf of the Secretary, determined that the FMP is implemented in a manner consistent with treaty rights of four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens.
This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Fisheries, Fishing, Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(f) * * *
(4)
(d) * * *
(1) * * *
(ii) * * *
(D)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. This proposed AD was prompted by significant changes, including new or more restrictive requirements, made to the airworthiness limitations (AWLs) related to fuel tank ignition prevention. This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate the latest revision of the AWLs. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by July 18, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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•
•
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For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
You may examine the AD docket at
Rose Len, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3604; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Rose Len, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3604; email:
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, the FAA issued a final rule titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction, and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements that rule included Amendment 21-78, which established Special Federal Aviation Regulation No. 88 (SFAR 88) at 14 CFR part 21. Subsequently, SFAR 88 was amended by Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002), Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”), and Amendment 21-101 (83 FR 9162, March 5, 2018).
Among other actions, SFAR 88 requires certain type design (
In evaluating these design reviews, the FAA established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, combination of failures, and unacceptable (failure) experience. For all three criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
This proposed AD was prompted by significant changes, including new or more restrictive requirements, made to the AWL related to fuel tank ignition prevention. This condition, if not addressed, could result in the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
The FAA is proposing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
The FAA reviewed Boeing 747-100/200/300/SP/SR Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-13747-CMR, dated September 2020. This service information describes AWLs that include airworthiness limitation instructions (ALIs) and critical design configuration control limitations (CDCCLs) tasks related to fuel tank ignition prevention. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate the latest revision of the AWLs.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
The proposed revisions will affect several existing AWL provisions in various ADs. The FAA has determined that accomplishing the revision required by paragraph (g) of this proposed AD would terminate the following AWL requirements for that airplane:
• The revision required by paragraphs (g) and (h) of AD 2008-10-07 R1, Amendment 39-16070 (74 FR 56098, October 30, 2009).
• The revision required by paragraph (g)(1) of AD 2008-18-09, Amendment 39-15666 (73 FR 52911, September 12, 2008).
• The revision required by paragraph (h)(2) of AD 2010-13-12, Amendment 39-16343 (75 FR 37997, July 1, 2010).
• The revision required by paragraph (h) of AD 2010-24-13, Amendment 39-16532 (75 FR 78591, December 16, 2010; corrected May 25, 2011 (76 FR 30253)).
• The revision required by paragraph (k) of AD 2011-06-03, Amendment 39-16627 (76 FR 15814, March 22, 2011).
• The revision required by paragraph (h)(2) of AD 2014-15-14, Amendment 39-17916 (79 FR 45324, August 5, 2014).
• The revision required by paragraph (h) of AD 2016-19-03, Amendment 39-18652 (81 FR 65872, September 26, 2016).
The FAA estimates that this AD, if adopted as proposed, would affect 39 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by July 18, 2022.
This AD affects the ADs specified in paragraphs (b)(1) through (7) of this AD.
(1) AD 2008-10-07 R1, Amendment 39-16070 (74 FR 56098, October 30, 2009) (AD 2008-10-07 R1).
(2) AD 2008-18-09, Amendment 39-15666 (73 FR 52911, September 12, 2008) (AD 2008-18-09).
(3) AD 2010-13-12, Amendment 39-16343 (75 FR 37997, July 1, 2010) (AD 2010-13-12).
(4) AD 2010-24-13, Amendment 39-16532 (75 FR 78591, December 16, 2010; corrected May 25, 2011 (76 FR 30253)) (AD 2010-24-13).
(5) AD 2011-06-03, Amendment 39-16627 (76 FR 15814, March 22, 2011) (AD 2011-06-03).
(6) AD 2014-15-14, Amendment 39-17916 (79 FR 45324, August 5, 2014) (AD 2014-15-14).
(7) AD 2016-19-03, Amendment 39-18652 (81 FR 65872, September 26, 2016) (AD 2016-19-03).
This AD applies to all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by significant changes, including new or more restrictive requirements, made to the airworthiness limitations (AWLs) related to fuel tank ignition prevention. The FAA is issuing this AD to address the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 60 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in Boeing 747-100/200/300/SP/SR Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-13747-CMR, dated September 2020, except as specified in paragraphs (h) and (i) of this AD. The initial compliance times for the airworthiness limitation instruction (ALI) tasks are within the applicable compliance times for each AWL number specified in paragraphs (g)(1) through (8) of this AD:
(1) For AWL No. 28-AWL-01, “External Wires Over Center Fuel Tank”: At the applicable time specified in paragraph (g)(1)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-01 in the existing maintenance or inspection program before the effective date of this AD: Within 144 months since issuance of the original airworthiness certificate or original export certificate, or within 12 months after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(1)(i) of this AD: Within 144 months since AWL No. 28-AWL-01 was incorporated into the existing maintenance or inspection program, or within 144 months after the most recent inspection was performed as specified in AWL No. 28-AWL-01, whichever occurs later.
(2) For 28-AWL-03, “Fuel Quantity Indicating System (FQIS)—Out Tank Wiring Lightning Shield to Ground Termination”: At the applicable time specified in paragraph (g)(2)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-03 in the existing maintenance or inspection program before the effective date of this AD: Within 144 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 12 months after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(2)(i) of this AD: Within 144 months since AWL No. 28-AWL-03 was incorporated into the existing maintenance or inspection program, or within 144 months after the most recent inspection was performed as specified in AWL No. 28-AWL-03, whichever occurs later.
(3) For 28-AWL-09, “Over-Current and Arcing Protection Electrical Design Features Operation—Fault Current Detector for Center Tank Override/Jettison (O/J) Pumps”: At the applicable time specified in paragraph (g)(3)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-09 in the existing maintenance or inspection program before the effective date of this AD: Within 18 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 90 days after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(3)(i) of this AD: Within 18 months since AWL No. 28-AWL-09 was incorporated into the existing maintenance or inspection program, or within 18 months after the most recent inspection was performed as specified in AWL No. 28-AWL-09, whichever occurs later.
(4) For AWL No. 28-AWL-13, “Main Tank, Center Wing Tank, Body Tank (if installed), and Auxiliary Tank (if installed) Refuel Valve Installation—Fault Current Bond”: At the applicable time specified in paragraph (g)(4)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-13 in the existing maintenance or inspection program before the effective date of this AD: Within 144 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 12 months after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(4)(i) of this AD: Within 144 months since AWL No. 28-AWL-13 was incorporated into the existing maintenance or inspection program, or within 144 months after the most recent inspection was performed as specified in AWL No. 28-AWL-13, whichever occurs later.
(5) For AWL No. 28-AWL-22, “Center Tank Override/Jettison Fuel Pump Inlet Protection and Power Failed On Protection System”: At the applicable time specified in paragraph (g)(5)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-22 in the existing maintenance or inspection program before the effective date of this AD: Within 12 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 90 days after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(5)(i) of this AD: Within 12 months since AWL No. 28-AWL-22 was incorporated into the existing maintenance or inspection program, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-22, whichever occurs later.
(6) For AWL No. 28-AWL-23, “Over-Current and Arcing Protection Electrical Design Features Operation—Main Tank AC Fuel Pump and Center Tank Scavenge AC Fuel Pump Ground Fault Interrupter (GFI)”: At the applicable time specified in paragraph (g)(6)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-23 in the existing maintenance or inspection program before the effective date of this AD: Within 12 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, within 12 months
(ii) For airplanes not identified in paragraph (g)(6)(i) of this AD: Within 12 months since AWL No. 28-AWL-23 was incorporated into the existing maintenance or inspection program, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-23, whichever occurs later.
(7) For AWL No. 28-AWL-25, “Cushion Clamps and Teflon Sleeving Installed on Out-of-Tank Wire Bundles Installed on Brackets that are Mounted Directly on the Fuel Tanks”: At the applicable time specified in paragraph (g)(7)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-25 in the existing maintenance or inspection program before the effective date of this AD: Within 144 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 12 months after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(7)(i) of this AD: Within 144 months since AWL No. 28-AWL-25 was incorporated into the existing maintenance or inspection program, within 144 months since Boeing Special Attention Service Bulletin 747-57-2327 was incorporated, or within 144 months after the most recent inspection was performed as specified in AWL No. 28-AWL-25, whichever occurs latest.
(8) For AWL No. 28-AWL-31, “Reserve Tank Refuel Valve Installation—Lightning Protection Electrical Bond”: At the applicable time specified in paragraph (g)(8)(i) or (ii) of this AD.
(i) For airplanes that did not have any version of AWL No. 28-AWL-31 in the existing maintenance or inspection program before the effective date of this AD: Within 72 months since issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 6 months after the effective date of this AD, whichever occurs later.
(ii) For airplanes not identified in paragraph (g)(8)(i) of this AD: Within 72 months since AWL No. 28-AWL-31 was incorporated into the existing maintenance or inspection program, or within 72 months after the most recent inspection was performed as specified in AWL No. 28-AWL-31, whichever occurs later.
(1) Where the “Applicability” column of AWL Nos. 28-AWL-25 and 28-AWL-27 specifies “ALL” and “NOTE,” replace that text with “Airplanes L/N 645 and on.”
(2) In the “Description” column of AWL Nos. 28-AWL-25 and 28-AWL-27, remove the Applicability Note.
(1) Where AWL No. 28-AWL-11 identifies wire types BMS 13-48, BMS 13-58, and BMS 13-60, the following wire types are acceptable: MIL-W-22759/16, SAE AS22759/16 (M22759/16), MIL-W-22759/32, SAE AS22759/32 (M22759/32), MIL-W-22759/34, SAE AS22759/34 (M22759/34), MIL-W-22759/41, SAE AS22759/41 (M22759/41), MIL-W-22759/86, SAE AS22759/86 (M22759/86), MIL-W-22759/87, SAE AS22759/87 (M22759/87), MIL-W-22759/92, and SAE AS22759/92 (M22759/92); and MIL-C-27500 and NEMA WC 27500 cables constructed from these military or SAE specification wire types, as applicable.
(2) Where AWL No. 28-AWL-11 identifies TFE-2X Standard wall for wire sleeving, the following sleeving materials are acceptable: Roundit 2000NX and Varglas Type HO, HP, or HM.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishment of the revision required by paragraph (g) of this AD terminates the requirements specified in paragraphs (k)(1) through (7) of this AD for that airplane:
(1) The revision required by paragraphs (g) and (h) of AD 2008-10-07 R1.
(2) The revision required by paragraph (g)(1) of AD 2008-18-09.
(3) The revision required by paragraph (h)(2) of AD 2010-13-12.
(4) The revision required by paragraph (h) of AD 2010-24-13.
(5) The revision required by paragraph (k) of AD 2011-06-03.
(6) The revision required by paragraph (h)(2) of AD 2014-15-14.
(7) The revision required by paragraph (h) of AD 2016-19-03.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (m)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Rose Len, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3604; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain MHI RJ Aviation ULC Model CL-600-2D24 (Regional Jet Series 900) airplanes. This proposed AD was prompted by a report of a manufacturing error that can create dents on the lower wing plank, close to the flap arm locations at certain wing stations; as a result, cracks could develop and weaken the structural integrity of the wings before being detected by any existing required inspections. This proposed AD would require an inspection for damage (including dents, cracks, discoloration, gouges, scratches, or other surface damage) of the lower wing plank in the flap arm areas at certain wing stations, and repair if necessary. The FAA is
The FAA must receive comments on this proposed AD by July 18, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact MHI RJ Aviation Group, Customer Response Center, 3655 Ave. des Grandes-Tourelles, Suite 110, Boisbriand, Québec J7H 0E2 Canada; North America toll-free telephone 833-990-7272 or direct-dial telephone 450-990-7272; fax 514-855-8501; email
You may examine the AD docket at
Deep Gaurav, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Deep Gaurav, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-31, dated September 14, 2021 (TCCA AD CF-2021-31) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain MHI RJ Aviation ULC Model CL-600-2D24 (Regional Jet Series 900) airplanes. You may examine the MCAI in the AD docket at
This proposed AD was prompted by a report of a manufacturing error that can result in dents on the lower wing plank, close to the five flap arm locations at wing station (WS) 54.55, WS 128.00, WS 179.00, WS 220.00, and WS 264.00. These dents could lead to cracks that could weaken the structural integrity of the wings before being detected by any existing required inspection. The FAA is proposing this AD to address dents, cracks, and other damage, that if not detected and corrected, could lead to reduced structural integrity of the wings. See the MCAI for additional background information.
MHI RJ Aviation ULC has issued Service Bulletin 670BA-57-029, dated February 2, 2021. This service information describes, among other actions, procedures for doing a detailed visual inspection for damage (including dents, cracks, discoloration, gouges, scratches, or other surface damage) of the outer aft lower skin at WS 54.55, WS 128.00, WS 179.00, WS 220.00, and WS 264.00, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information already described.
The FAA estimates that this AD, if adopted as proposed, would affect 14 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by July 18, 2022.
None.
This AD applies to MHI RJ Aviation ULC (Type Certificate Previously Held by Bombardier, Inc.) Model CL-600-2D24 (Regional Jet Series 900) airplanes, certificated in any category, having serial number 15462 through 15475 inclusive.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a report of a manufacturing error that can create dents on the lower wing plank, close to the flap arm locations at certain wing stations; as a result, cracks could develop and weaken the structural integrity of the wings before being detected by any existing required inspections. The FAA is issuing this AD to address dents, cracks, and other damage, that, if not detected and corrected, could lead to reduced structural integrity of the wings.
Comply with this AD within the compliance times specified, unless already done.
Prior to the accumulation of 8,800 total flight hours or within 30 days after the effective date of this AD, whichever occurs later, perform a detailed visual inspection for damage (including dents, cracks, discoloration, gouges, scratches, or other surface damage) of the outer aft lower skin at wing stations (WS) 54.55, WS 128.00, WS 179.00, WS 220.00, and WS 264.00 in accordance with paragraph B., “Procedure,” of the Accomplishment Instructions of MHI RJ Aviation Service Bulletin 670BA-57-029, dated February 2, 2021. Do all applicable corrective actions before further flight. If any damage is found during the inspection, before further flight, repair using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or MHI RJ Aviation ULC's TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.
Although MHI RJ Aviation Service Bulletin 670BA-57-029, dated February 2, 2021, specifies to submit certain information to the manufacturer, this AD does not include that requirement.
Special flight permits may be issued in accordance with 14 CFR 21.197 and 21.199 to operate the airplane to a location where the inspection can be done, provided the flight is a non-revenue flight.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2021-31, dated September 14, 2021, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Deep Gaurav, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
(3) For service information identified in this AD, contact MHI RJ Aviation Group, Customer Response Center, 3655 Ave. des Grandes-Tourelles, Suite 110, Boisbriand, Québec J7H 0E2 Canada; North America toll-free telephone 833-990-7272 or direct-dial telephone 450-990-7272; fax 514-855-8501; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) AD 2021-16-07, which applies to certain Airbus Defense and Space S.A. Model C-212-CB, C-212-CC, C-212-CD, C-212-CE, C-212-CF, C-212-DE, and C-212-DF airplanes. AD 2021-16-07 requires repetitive inspections of the left-hand (LH) and right-hand (RH) side center wing fairings at a certain frame, around the wing leading edge for discrepancies (cracks), and repair if necessary. Since the FAA issued AD 2021-16-07, a modification was developed to reinforce the structure in the affected area, providing an optional terminating action for the repetitive inspections required by AD 2021-16-07. This proposed AD would continue to require the actions in AD 2021-16-07 and would allow new optional terminating action for the repetitive inspections, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by July 18, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For material that will be incorporated by reference (IBR) in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket at
Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3220; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3220; email
The FAA issued AD 2021-16-07, Amendment 39-21669 (86 FR 47210, August 24, 2021) (AD 2021-16-07), which applies to certain Airbus Defense and Space S.A. Model C-212-CB, C-
Since the FAA issued AD 2021-16-07, a modification was developed to reinforce the structure in the affected area, which is an optional terminating action for the repetitive inspections required by AD 2021-16-07.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0182R1, dated October 29, 2021 (EASA AD 2020-0182R1) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus Defense and Space S.A. Model C-212-CB, C-212-CC, C-212-CD, C-212-CE, C-212-CF, C-212-DD, C-212-DE, C-212-DF, C-212-EE and C-212-VA airplanes. Model C-212-DD, C-212-EE, and C-212-VA airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.
This proposed AD was prompted by a report of cracks on the LH and RH side fuselage skin and on a certain frame underneath the skin, near the leading edge of the wing, and the development of a modification to reinforce the structure in the affected area. The FAA is proposing this AD to address cracks on the LH and RH side fuselage skin and on FR 5 underneath the skin, near the leading edge of the wing, which could affect the structural integrity of the airplane. See the MCAI for additional background information.
Although this proposed AD does not explicitly restate the requirements of AD 2021-16-07, this proposed AD would retain all of the requirements of AD 2021-16-07. Those requirements are referenced in EASA AD 2020-0182R1, which, in turn, is referenced in paragraph (g) of this proposed AD.
EASA AD 2020-0182R1 specifies procedures for repetitive detailed visual inspections of the LH and RH side center wing fairings at FR 5, around the wing leading edge for discrepancies (cracks) and repair, and for a modification to reinforce the structure in the affected area, which terminates the repetitive inspections.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require accomplishing the actions specified in EASA AD 2020-0182R1 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2020-0182R1 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0182R1 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2020-0182R1 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2020-0182R1. Service information required by EASA AD 2020-0182R1 for compliance will be available at
The FAA estimates that this proposed AD affects 45 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by July 18, 2022.
This AD replaces AD 2021-16-07, Amendment 39-21669 (86 FR 47210, August 24, 2021) (AD 2021-16-07).
This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model C-212-CB, C-212-CC, C-212-CD, C-212-CE, C-212-CF, C-212-DE, and C-212-DF airplanes, certificated in any category, as identified in European Union Aviation Safety Agency (EASA) AD 2020-0182R1, dated October 29, 2021 (EASA AD 2020-0182R1).
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report of cracks on the left-hand (LH) and right-hand (RH) side fuselage skin and on frame (FR) 5 underneath the skin, near the leading edge of the wing, and the development of a modification to reinforce the structure in the affected area. The FAA is issuing this AD to address cracks on the LH and RH side fuselage skin and on FR 5 underneath the skin, near the leading edge of the wing, which could affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2020-0182R1.
(1) Where EASA AD 2020-0182R1 refers to its effective date, this AD requires using the effective date of this AD.
(2) Where EASA AD 2020-0182R1 refers to refers to August 27, 2020 (the effective date of EASA AD 2020-0182), this AD requires using September 28, 2021 (the effective date of AD 2021-16-07).
(3) Where paragraph (2) of EASA AD 2020-0182R1 specifies to “contact Airbus D&S for approved instructions and accomplish those instructions accordingly” if discrepancies are detected, for this AD if any cracking is detected, the cracking must be repaired before further flight using a method approved by the Manager, Large Aircraft Section, International Validation Branch, FAA; or EASA; or Airbus Defense and Space S.A.'s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
(4) The “Remarks” section of EASA AD 2020-0182R1 does not apply to this AD.
Although the service information referenced in EASA AD 2020-0182R1 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(1) For EASA AD 2020-0182R1, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(2) For more information about this AD, contact Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3220; email
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the Lansing Island Bridge across Grand Canal, mile 0.7 at Indian Harbour Beach, FL. A request was made to the Coast Guard to allow the drawbridge to remain closed to navigation and untended during the overnight hours due to a lack of requested openings. We invite your comments on this proposed rulemaking.
Comments and relate material must reach the Coast Guard on or before July 5, 2022.
You may submit comments identified by docket number USCG-2022-0015 using Federal Decision Making Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Ms. Jennifer Zercher, Bridge Management Specialist, Seventh Coast Guard District, telephone 305-415-6740, email
The Lansing Island Bridge across Grand Canal, mile 0.7, at Indian Harbour Beach, FL is a single-leaf bascule bridge with a 16 foot vertical clearance at mean high water in the closed position. The normal operating schedule for the bridge is set forth in 33 CFR 117.285(a). Navigation on the waterway consists mainly of recreational mariners.
The bridge owner, Lansing Island Homeowners Association, Inc. requested the Coast Guard consider allowing the drawbridge to remain closed to navigation and untended during the overnight hours due to a lack of requested openings. We requested a copy of the bridge logs from January 1, 2021 through November 30, 2021. After reviewing the logs, the Coast Guard found the drawbridge provided three openings between the hours of 10 p.m. and 6 a.m. Two channels provide alternate access to Grand Canal. Vessels that can pass beneath the bridge without an opening may do so at any time.
On February 1, 2022, the Coast Guard published a Test Deviation entitled Drawbridge Operation Regulation; Grand Canal, Indian Harbour Beach, FL in the
The proposed rule will allow the drawbridge to remain closed to navigation and untended during the overnight hours seven days a week. Two channels provide alternate access to Grand Canal.
This proposed change would still allow vessels that are capable of transiting under the bridge, without an opening, to do so at any time.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability that vessels capable of transiting under the bridge, without an opening, may do so at any time and alternate routes for vessels to transit Grand Canal are available.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We accept anonymous comments. Comments we post to
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; DHS Delegation No. 0170.1.
(a) The draw of the Lansing Island Bridge, mile 0.7, at Indian Harbour Beach, shall open on signal, except that from 10 p.m. to 6 a.m., daily, the draw need not open for the passage of vessels and will be untended.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision it received on November 11, 2016, submitted by the State of North Dakota, through the North Dakota Department of Health (NDDH). The revision was submitted by North Dakota in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, for a provision in the North Dakota SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing approval of the SIP revision and proposing to determine that this SIP revision corrects the deficiency identified in the June 12, 2015, SIP call.
Comments must be received on or before July 5, 2022.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2022-0359 at
Ellen Schmitt, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number: (303) 312-6728, email address:
Throughout this document wherever “we” or “our” is used, it refers to EPA.
On February 22, 2013, EPA issued a
On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” (80 FR 33839, June 12, 2015), hereafter referred to as the “2015 SSM SIP Action.” The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016. In the 2015 SSM Action, EPA issued a SIP call for the North Dakota SIP, since EPA found that provision 33-15-03-04.3, located in the State's SIP, is inconsistent with the CAA and the 2015 SSM Policy because it allows for discretionary exemptions from otherwise applicable emission limitations through a State official's unilateral exercise of discretionary authority that is insufficiently bounded. As noted in a previous footnote, shortly after North Dakota proposed the November 11, 2016 SIP revision, the State created a new environmental agency, the North Dakota Department of Environmental Quality (NDDEQ), and North Dakota's Air Pollution rules were recodified under the NDAC as 33.1-15 instead of 33-15.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements.
On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum).
With regard to the North Dakota SIP, EPA proposes to approve the removal of provision 33.1-15-03-04.3 from Article 33.1-15-03, Restriction of Emission of Visible Air Contaminants.
EPA is proposing to approve North Dakota's November 11, 2016 SIP revision requesting the removal of provision 33.1-15-03-04.3 from the State's SIP. We consider the removal of this provision sufficient to correct the inadequacies that EPA's 2015 SSM SIP Action identified in the North Dakota SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA is proposing to approve North Dakota's November 11, 2016 SIP submission requesting removal of 33.1-15-03-04.3 from the State SIP. We are proposing approval of the SIP revision because we have determined that it is consistent with the requirements for SIP provisions under the CAA. EPA is further proposing to determine that such SIP revision corrects the deficiency identified in the June 12, 2015, SIP call. EPA is not reopening the 2015 SSM SIP Action and is only taking comment on whether this SIP revision is consistent with CAA requirements and whether it addresses the substantial inadequacy in the specific North Dakota SIP provision (33.1-15-03-04.3) identified in the 2015 SSM SIP Action. EPA has previously taken action on other parts of the North Dakota November 11, 2016 SIP submittal and therefore these other elements have not been addressed in this action nor will EPA be taking comments on those topics at this time.
In this document, EPA is proposing to remove in a final rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to remove the incorporation by reference of “33.1-15-03-04.3” in 40 CFR 52.1820, as described in Section II of this preamble. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves removal of State law not meeting Federal requirements and does not impose additional requirements beyond those already imposed by State law. For that reason, this proposed 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 proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing partial approval and partial disapproval of revisions to the Missouri State Implementation Plan (SIP) received on March 20, 2019 and June 10, 2021. The SIP revisions in the 2019 and 2021 submittals incorporate updates to construction permit requirement regulations for stationary and portable air sources in Missouri that help ensure ambient air quality standards are met. The changes include numerous organizational changes, administrative and typographical edits to improve clarity of the construction permit process. The revisions include added procedures for the Missouri Department of Natural Resources (MoDNR) to issue general permits. For portable equipment installations, the potential to emit major source threshold of particulate matter was changed to match federal requirements. The changes proposed for approval meet the requirements of the Clean Air Act.
EPA is proposing to disapprove section (1)(B) regarding voluntary permits. EPA is proposing disapproval because the language of the provision is too vague and does not provide sufficient clarity for implementation.
Comments must be received on or before July 5, 2022.
You may send comments, identified by Docket ID No. EPA-R07-OAR-2022-0432 to
Keith Johnson, Environmental Protection Agency, Region 7 Office, Air Permitting and Standards Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7737; email address:
Throughout this document “we,” “us,” and “our” refer to the EPA.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2022-0432, at
The EPA is proposing to partially approve and partially disapprove a submission from Missouri that revises 10 CSR 10-6.060 Construction Permits Required. The revisions were received by EPA on March 20, 2019 and June 10, 2021. The EPA's analysis of the revisions can be found in Section III and in more detail in the technical support document (TSD) included in this docket.
In the 2019 SIP submission, MoDNR stated that the revisions to this rule were extensive in order to clarify requirements and procedures for improving readability and regulatory certainty. These proposed changes remove outdated references to incorporation by reference information and added appropriate incorporation by reference information to this rule. The proposed changes clarify the definition of “portable equipment installation” and added procedures for issuing general permits in addition to other minor typographical corrections.
Also in Missouri's 2019 submission, the State requested to add a provision for voluntary permits. The EPA is proposing to disapprove section (1)(B) of 10 CSR 10-6.060 regarding voluntary permits. EPA proposes to find the language of section (1)(B) to be too vague for the conditions in which these permits would be issued based on the requirements of 40 CFR 51.160(a), CAA section 110(a)(2)(A), and the John S. Seitz EPA Guidance Memo of September 23, 1987, titled “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency.” For a SIP revision to be approved, EPA evaluates the rule revisions to ensure that any new provisions are permanent, quantifiable, and enforceable. EPA is proposing disapproval because there is no information in the rule on the conditions, requirements, and parameters for applying for, issuing, or implementing voluntary permits. Based on the limited language in the rule, it is unclear how MoDNR intends to implement the proposed provision. The rule text and EPA's full analysis of the requested revisions is included in the TSD.
Missouri's 2021 SIP submission amendments consist primarily of administrative text edits and clarifications. A clarification to the definition of
Based on EPA's analysis of the requested revisions to 10 CSR 10-6.060 as summarized here and more fully described in the TSD, EPA proposes to approve all requested revisions, other than section (1)(B) regarding voluntary permits, because they meet the requirements of the Clean Air Act, do not negatively impact the stringency of
With respect to the portions of the submittal which EPA is approving, the State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from August 1, 2018 to October 4, 2018 and received 56 comments. 32 comments were made by EPA, 21 comments from State of Missouri Air Program Staff, and 4 from the public. The State of Missouri revised the rule and responded to comments prior to submitting to the EPA. In addition, as explained above (and in more detail in the technical support document which is included in the docket for this action), the revisions proposed for approval meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
As explained in Section III and further in the TSD, EPA is proposing to disapprove section (1)(B) of 10 CSR 10-6.060 regarding voluntary permits.
We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments. The State of Missouri previously conducted a public notice on the rule changes and responded to all comments. We are publishing the proposed rule in the
In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Missouri Regulations of 10 CSR 10-6.060 Construction Permits Required as described in Section II of this preamble and set forth below in the proposed amendments to 40 CFR part 52. The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; 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).
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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(c) * * *
Federal Communications Commission.
Petition for Reconsideration.
Petition for Reconsideration (Petition) has been filed in the Commission's proceeding by Michael P. Goggin, on behalf of AT&T Services, Inc.
Oppositions to the Petition must be filed on or before June 17, 2022. Replies to oppositions must be filed on or before June 27, 2022.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Susan Mort, Associate Bureau Chief, Wireless Telecommunications Bureau, 202-418-2129 or via email at
This is a summary of the Commission's document, Report No. 3187, released May 23, 2022. The full text of the Petition can be accessed online via the Commission's Electronic Comment Filing System at:
U.S. Codex Office, USDA.
Notice of public meeting and request for comments.
The U.S Codex Office is sponsoring a public meeting on August 22, 2022. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions to be discussed at the 6th Session of the Codex Committee on Spices and Culinary Herbs (CCSCH) of the Codex Alimentarius Commission (CAC), which will convene virtually, September 26-October 3, 2022. The U.S. Manager for Codex Alimentarius and the Acting Deputy Under Secretary for Trade and Foreign Agricultural Affairs recognize the importance of providing interested parties the opportunity to obtain background information on the 6th Session of the CCSCH and to address items on the agenda.
The public meeting is scheduled for August 22, 2022, from 1:00-2:30 p.m. EDT.
The public meeting will take place via Video Teleconference only. Documents related to the 6th Session of the CCSCH will be accessible via the internet at the following address:
Mr. Dorian LaFond, U.S. Delegate to the 6th Session of the CCSCH, invites U.S. interested parties to submit their comments electronically to the following email address:
For further information about the 6th Session of the CCSCH, contact: U.S. Delegate, Mr. Dorian LaFond,
For further information about the public meeting, contact: U.S. Codex Office, 1400 Independence Avenue SW, Room 4861, South Agriculture Building, Washington, DC 20250. Phone +1 (202) 720-7760, Fax: +1 (202) 720-3157, Email:
Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure fair practices in the food trade.
The Terms of Reference of the Codex Committee on Spices and Culinary Herbs (CCSCH) are:
(a) To elaborate worldwide standards for spices and culinary herbs in their dried and dehydrated state in whole, ground, and cracked or crushed form;
(b) To consult, as necessary, with other international organizations in the standards development process to avoid duplication.
The CCSCH is hosted by India. The United States attends the CCSCH as a member country of Codex.
The following items from the forthcoming Agenda for the 6th Session of the CCSCH will be discussed during the public meeting:
At the August 22, 2022, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to Mr. Dorian LaFond, U.S. Delegate for the 6th Session of the CCSCH (see
Public awareness of all segments of rulemaking and policy development is important. Consequently, the U.S. Codex Office will announce this
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, American Sign Language, etc.) should contact USDA's TARGET Center at +1 (202) 720-2600 (voice and TDD).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily finds that POSCO (the single entity comprised of POSCO and POSCO International Corporation), a producer and exporter of carbon and alloy steel wire rod (wire rod) from the Republic of Korea (Korea), sold subject merchandise in the United States at prices not below normal value during the period of review (POR) May 1, 2020, through April 30, 2021. We invite all interested parties to comment on these preliminary results.
Applicable June 2, 2022.
Lingjun Wang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2316.
On May 21, 2018, Commerce published in the
Commerce is conducting this administrative review in accordance with section 751(a)(1)(B) of Tariff Act of 1930, as amended (the Act). On July 6, 2021, in accordance with 19 CFR 351.221(c)(1)(i), we initiated this review covering POSCO, the sole producer and exporter for which a review was requested.
For a detailed description of the events that followed the initiation of this review,
The scope of the
Commerce is conducting this review in accordance with section 751(a) of the Act. Constructed export prices are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
We preliminarily determine the following weighted-average dumping margin for the period May 1, 2020, through April 30, 2021:
Upon issuance of the final results, Commerce shall
Pursuant to 19 CFR 351.212(b)(1), where an examined respondent's weighted-average dumping margin is not zero or
For entries of subject merchandise during the POR produced by POSCO for which it did not know that its merchandise was destined for the United States, we will instruct CBP to liquidate such unreviewed entries pursuant to the reseller policy,
The following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for POSCO will be equal to POSCO's weighted-average dumping margin established in the final results of this review, except if the rate is less than 0.50 percent, and, therefore,
Commerce intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after the date of publication of this notice in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs no later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed request for a hearing must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the publication of these preliminary results in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of ADs prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of ADs occurred and the subsequent assessment of double ADs.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Western Pacific Fishery Management Council (Council) will hold its Regional Archipelagic Ecosystem Committee (REAC) meeting to discuss and make recommendations on fishery management issues in the Western Pacific Region.
The meeting will be held June 17, 2022. For specific times and agendas, see
The meeting will be held by web conference via Webex. Instructions for connecting to the web conference and providing oral public comments will be posted on the Council website at
Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council; telephone: (808) 522-8220.
The REAC meeting will be held between 1 p.m. and 4 p.m. on June 17, 2022, Hawaii Standard Time. Public comment periods will be provided in the agendas. The order in which agenda items are addressed may change. The meeting will run as late as necessary to complete scheduled business.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, phone: (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public online meeting.
The Groundfish Subcommittee of the Pacific Fishery Management Council's (Pacific Council's) Scientific and Statistical Committee (SSC) will hold a workshop to develop methods for constructing abundance indices based on hook-and-line surveys. Additionally, the SSC Groundfish Subcommittee will review the Species Distribution Model in Template Model Builder. The workshop and methodology review meeting is open to the public.
The SSC Groundfish Subcommittee's online workshop and methodology review meeting will be held Tuesday, June 21, 2022 through Thursday, June 23, 2022 beginning at 8 a.m. each day and continuing until 5 p.m. Pacific Time or until business for the day has been completed.
The SSC Groundfish Subcommittee's methodology review meeting and workshop will be an online meeting. Specific meeting information, including directions on how to join the meeting and system requirements, will be provided in the meeting announcement on the Pacific Council's website (see
Mr. John DeVore, Staff Officer, Pacific Fishery Management Council; telephone: (503) 820-2413.
The purpose of the SSC Groundfish Subcommittee's meeting is to develop methods and best practices for constructing abundance indices based on hook-and-line surveys in a workshop. Recommendations of SSC Groundfish Subcommittee members will inform the 2023 Accepted Practices Guidelines for Stock Assessments, which is a compilation of guidelines for groundfish stock assessment scientists. Additionally, the SSC Groundfish Subcommittee will review the Species Distribution Model in Template Model Builder (sdmTMB). The sdmTMB model is proposed for developing relative biomass indices in future groundfish stock assessments. The SSC Groundfish Subcommittee report of workshop and methodology review findings and recommendations will be provided to the Pacific Council and the SSC at the November 2022 Pacific Council meeting.
No management actions will be decided by the SSC Groundfish Subcommittee. The SSC Groundfish Subcommittee members' role will be development of recommendations and reports for consideration by the SSC and Pacific Council at the November 2022 Pacific Council meeting.
Although nonemergency issues not contained in the meeting agendas may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent of the SSC Groundfish Subcommittee to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for regulations and Letter of Authorization; request for comments and information.
NMFS has received a petition from Sunrise Wind, LLC (Sunrise Wind), a 50/50 joint venture between Orsted North America Inc. (Orsted) and Eversource Investment LLC (Eversource), requesting authorization to take small numbers of marine mammals incidental to construction and operation activities associated with the Sunrise Wind Offshore Wind Farm in a designated lease area on the Outer Continental Shelf (OSC-A 0487)
Comments and information must be received no later than July 5, 2022.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service and should be sent to
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401. An electronic copy of Sunrise Wind's application may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An incidental take authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 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.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, 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).
On November 10, 2021, NMFS received an application from Sunrise Wind requesting authorization for the taking of marine mammals incidental to construction and operation activities related to the development of the Sunrise Wind Offshore Wind Farm offshore of Rhode Island in Commercial Lease (OCS-A-0487). In response to our comments, and following extensive information exchange with NMFS, Sunrise Wind submitted a final, revised application on May 9, 2022, that we determined was adequate and complete on May 10, 2022. Sunrise Wind requested the regulations and subsequent LOA be valid for five years beginning in 2023.
Sunrise Wind considered the following activities associated with wind farm construction and operation in its application: Impact installation of up to 94 wind turbine generators (WTG) monopole foundations at 102 potential locations; impact installation of one offshore converter stations (OCS-DC) jacket foundation; installation and removal of temporary cofferdams or casing pipes with support sheet piles at the cable landfall location using a pneumatic pipe rammer, impact hammer, and vibratory hammer; detonation of unexploded ordnances (UXOs); high-resolution geophysical (HRG) site characterization surveys; fisheries monitoring surveys; and export cable and inter-array cable trenching, laying, and burial. Vessels will be used to transport crew, supplies, and materials within the Project area to support construction and operation. Sunrise Wind has determined that a subset of these activities (
In Executive Order 14008, President Biden stated that it is the policy of the United States to organize and deploy the full capacity of its agencies to combat the climate crisis to implement a Government-wide approach that reduces climate pollution in every sector of the economy; increases resilience to the impacts of climate change; protects public health; conserves our lands, waters, and biodiversity; delivers environmental justice; and spurs well-paying union jobs and economic growth, especially through innovation, commercialization, and deployment of clean energy technologies and infrastructure.
Through a competitive leasing process under 30 CFR 585.211, Sunrise Wind was awarded Commercial Lease OCS-A 0487 offshore of New York and the exclusive right to submit a construction and operations plan (COP) for activities within the lease area. Sunrise Wind has submitted a COP to BOEM proposing the construction, operation, maintenance, and conceptual decommissioning of the Sunrise Wind project, a 924-1,034 megawatt (MW) commercial-scale offshore wind energy facility located within Lease Area OCS-
Sunrise Wind anticipates the following activities may potentially result in harassment of marine mammals:
• Installing up to 94 WTG monopile foundations with a maximum diameter tapering from 7 meters (m) above the waterline to 12 m (39 ft) below the waterline (7/12 m monopile) using a 4,000 kilojoule impact hammer pile driving from May through December in 2024;
• installing one OCS-DC jacket foundation (8 4-m pin piles) by impact pile driving from May through December in 2024;
• installing and removing 2 casing pipes by pneumatic ramming and/or impact driving and supporting sheet piles by vibratory pile driving at the cable landfall location on Fire Island, New York (up to four days to install and remove each casing pipe for 8 days total plus up to 24 days to install and remove supporting sheet piles);
• using HRG equipment to survey approximately 30,861 kilometers (km) over approximately 621 days across all 5 years (2023-2028);
• the potential high-order detonation of up to 3 UXOs over the course of 3 days in 2024 (1 UXO detonation per day, as necessary).
Sunrise Wind has noted that these are the most accurate estimates for the durations of each planned activity, but that the schedule may shift over the course of the Project due to weather, mechanical, or other related delays.
Interested persons may submit information, suggestions, and comments concerning Sunrise Wind's request (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
Several fishery management bodies on the East Coast of the United States are convening a public workshop to continue work on an initiative called
The meeting will be held Tuesday, June 21, 2022 through Thursday, June 23, 2022.
The meeting will be held at the DoubleTree by Hilton Hotel Crystal City, 300 Army Navy Drive, Arlington, VA 22202; telephone: (703) 416-4100. The meeting will be partially streamed by webinar for portions of the agenda that are held in plenary. Connection information will be posted to the calendar prior to the meeting at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
Climate change is a growing threat for marine fisheries worldwide. On the East coast of the United States, some species have already experienced considerable climate-related changes in distribution, abundance, and/or productivity. These changes have the potential to strain fisheries management and governance systems. Through the East Coast Climate Change Scenario Planning Initiative, fishery scientists and managers are working collaboratively and engaging diverse fishery stakeholders to explore jurisdictional and governance issues related to climate change.
The next phase of this initiative will be a 2.5-day Scenario Creation Workshop, to be held in Arlington, VA, from June 21-23, 2022. Through a series of conversations and exercises, participants will create a set of scenarios that describe how climate change might affect East Coast fisheries in the next 20 years. Each scenario will describe a different way in which changing oceanographic, biological, and social/economic conditions could combine to create future challenges and opportunities for East Coast fisheries.
Day 1 of the workshop will be spent reviewing the work to date (
Approximately 75 workshop participants have been selected in advance to represent a broad range of stakeholder groups and East Coast regions. Others attending the meeting in person are invited to observe the plenary discussions and to provide comments during designated public comment opportunities. Plenary sessions only will be broadcast by webinar. Participants on the webinar will be able to provide input through a chat function and these comments will be summarized and reported out to workshop participants to the extent practicable. Additional details about the workshop will be posted to this page once available:
The draft scenarios resulting from this workshop will be further refined later this summer and will feed into the Applications Phase of the initiative. During the Applications Phase, participating organizations will generate ideas and offer solutions to the challenges highlighted in the initiative, exploring what the different scenarios mean for future fishery management and
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau or CFPB) is requesting to extend the Office of Management and Budget's (OMB's) approval for an existing information collection titled, “Joint Standards and CFPB Standards for Assessing the Diversity Policies and Practices.”
Written comments are encouraged and must be received on or before August 1, 2022 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
Documentation prepared in support of this information collection request is available at
Take notice that on May 16, 2022, Southern Star Central Gas Pipeline, Inc. (Southern Star), 4700 State Route 56, Owensboro, Kentucky 42301, filed in
In addition to publishing the full text of this document in the
Any questions concerning this request should be directed to Cindy Thompson, Director, Regulatory, Compliance & Information Governance, Southern Star Central Gas Pipeline, Inc., 4700 State Route 56, Owensboro, Kentucky 42301, by phone at (270) 852-4655 or by email at
There are three ways to become involved in the Commission's review of this project: You can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on July 25, 2022. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before July 25, 2022. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP22-460-000 in your submission. The Commission encourages electronic filing of submissions.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
The Commission's eFiling staff are available to assist you at (202) 502-8258 or
(2) You can file a paper copy of your submission. Your submission must reference the Project docket number CP22-460-000.
To mail via USPS, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To mail via any other courier, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at:
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets.
This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.
On May 10, 2022, the ISO/RTO Council (IRC),
On May 19, 2022, the National Association of Regulatory Utility Commissioners (NARUC) filed a motion requesting a 30-day extension of time to submit initial comments in this proceeding, from July 18, 2022 to August 17, 2022. NARUC states that the current initial comment deadline of July 18, 2022 is at the beginning of NARUC's Summer Policy Summit, during which the Commission and NARUC will hold another meeting of the Joint Federal-State Task Force on Electric Transmission (Task Force). NARUC states that the state members of the Task Force spend a great deal of time preparing for the Task Force meetings, and it will be difficult for them to balance preparing for the Task Force meeting with developing comments in this proceeding, in addition to their primary responsibilities to their public utility commissions. Further, NARUC states that NARUC meetings serve as an opportunity for their members to discuss policy matters and develop their advocacy positions. Western State Regional Representatives
Upon consideration, notice is hereby given that the deadline to submit initial comments in response to the NOPR in this proceeding is extended from July 18, 2022 to and including August 17, 2022. Additionally, notice is hereby given that the deadline to submit reply comments is extended from August 17, 2022 to and including September 19, 2022.
This is a supplemental notice in the above-referenced proceeding of Powells Creek Farm Solar, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 15, 2022.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the
In addition to publishing the full text of this document in the
On October 13, 2021, the PacifiCorp, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of Electric Lake Pumped Storage Project to be located in Emery and Sanpete Counties, Utah. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) The existing 31,500-acre-foot Electric Lake as the upper reservoir, which is impounded by the 229-foot-high, 8,586-foot-long Electric Lake Dam; (2) a new 3,900-foot-long, 375-foot-high concrete gravity dam; a new 820-foot-long, 85-foot-high embankment dam; and a new 1,300-foot-long, 150-foot-high embankment dam, each of which would impound a new 5,000-acre-foot upper reservoir; (3) a new 9,504-foot-long, 24-foot-diameter penstock; (4) a new underground powerhouse containing up to three 167-megawatt Francis pump-turbines generators; (5) a new 345-kilovolt, 55,968-foot-long transmission line that would connect the powerhouse to the PacifiCorp's existing Huntington-Mona 345-kilovolt transmission line; and (6) appurtenant facilities. The estimated annual power generation at the Electric Lake Pumped Storage Project would be 1,460 gigawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
l.
There are structures inside the project boundary that are not considered part of the project: The Middle Dam, with sixty percent of the dam currently breached, located in the bypassed reach of the Mohawk River, and built as part of a hydropower plant that was decommissioned in 1962; and the Gilbert Dam located also in the bypassed reach approximately 700 feet upstream of the powerhouse to measure flow through the Mohawk River and to ensure minimum flow conditions are met in the river.
Little Falls Associates proposes to continue to operate the project in a run-of-river mode and continue to provide a minimum flow of 300 cubic feet per second, or inflow if less, into the project's bypassed reach. The project generated an annual average of 55,355 megawatt-hours between 2013-2020.
m. A copy of the application may be viewed on the Commission's website at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments 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 comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
o.
p. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
q. The applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification. Please note that the certification request must comply with 40 CFR 121.5(b), including documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request. Please also note that the certification request must be sent to the certifying authority and to the Commission concurrently.
Environmental Protection Agency (EPA).
Notification for a public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), the U.S. Environmental Protection Agency (EPA) hereby provides notice that the National Environmental Justice Advisory Council (NEJAC) will meet on the date and time described below. The meeting is open to the public. Members of the public are encouraged to provide comments relevant to EPA investments for addressing Environmental Justice and related topics being considered by the NEJAC. For additional information about registering to attend the meeting or to provide public comment, please see “REGISTRATION” under
The NEJAC will hold a two-day virtual public meeting on Wednesday, June 22, 2022, and Thursday, June 23, 2022, from approximately 1:00 p.m. to 5:00 p.m., Eastern Time, each day. A public comment period relevant to EPA investments and related topics will be considered by the NEJAC during the meeting on June 22, 2022 (see
Fred Jenkins, NEJAC Designated Federal Officer, U.S. EPA; email:
The primary purpose of this meeting is for the council to finalize advice and recommendations on EPA's investments to address environmental justice through the Justice40 Initiative. The meeting will also include updates from each of the NEJAC workgroups, a special public stakeholder panel session and an oral public comment period
The Charter of the NEJAC states that the advisory committee will provide independent advice and recommendations to the EPA Administrator about broad, crosscutting issues related to environmental justice. The NEJAC's efforts will include evaluation of a broad range of strategic, scientific, technological, regulatory, community engagement and economic issues related to environmental justice.
The NEJAC is interested in receiving public comments specific to EPA investments and the public's recommendation as to where investments are made. Every effort will be made to hear from as many registered public commenters during the time specified on the agenda. Individuals or groups making remarks during the oral public comment period will be limited to three (3) minutes. Please be prepared to briefly describe your comments; including your recommendations on what you want the NEJAC to advise the EPA to do. Submitting written comments for the record are strongly encouraged. You can submit your written comments in three different ways, (1.) by using the webform at
For information about access or services for individuals requiring assistance, please contact Fred Jenkins, via email at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Gathering Data on Results of Annual and Triennial Testing To Evaluate the Impacts of EPA's 2015 Federal Underground Storage Tank Regulation” (EPA ICR No. 2650.01, OMB Control No. 2050-NEW) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before August 1, 2022.
Submit your comments, referencing Docket ID No. EPA-HQ-OLEM-2022-0440 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Elizabeth McDermott, Prevention Division, Office of Underground Storage Tanks, (Mail Code 5401R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-0646; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Export-Import Bank of the United States (EXIM) is accepting applications for the 2022-2023 EXIM Advisory Committee, Sub-Saharan Africa Advisory Committee, Council on Climate, Council on China Competition, Council on Small Business, and Council on Advancing Women in Business from June 1-June 30, 2022.
Candidates wishing to be considered for membership must submit an online
Completed application materials must be submitted by 5:30 p.m. EDT, June 30, 2022.
The Advisory Committee provides guidance to EXIM on its policies and programs, in particular on the extent to which EXIM provides competitive financing to support American jobs through exports.
The Sub-Saharan Africa Advisory Committee provides advice on EXIM policies and programs designed to support the expansion of financing support for U.S. manufactured goods and services in Sub-Saharan Africa.
The Council on Climate advises how EXIM can further support U.S. exporters and American jobs in clean energy and meet congressional mandates to support and promote environmentally beneficial renewable energy, energy efficiency, and energy storage exports.
The Council on China Competition offers guidance on advancing the comparative leadership of the United States with respect to China and supporting U.S. innovation and employment through competitive export finance.
The Council on Small Business provides recommendations to help more American small business exporters find new markets, achieve more sales, and lower the risk of selling internationally.
The Council on Advancing Women in Business advises how EXIM can reach more women business leaders and owners and better consider equity goals set in the agency's strategy.
For more information about applying for membership to any of the committees, please contact India Walker, External Engagement Specialist, at
Tuesday, June 7, 2022 at 10:00 a.m. and its continuation at the conclusion of the open meeting on June 8, 2022.
1050 First Street NE, Washington, DC and virtual (this meeting will be a hybrid meeting).
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Wednesday, June 8, 2022 at 10:00 a.m.
Hybrid Meeting: 1050 First Street NE, Washington, DC (12th Floor) and Virtual.
This meeting will be open to the public, subject to the above-referenced guidance regarding the COVID-19 community level and corresponding health and safety procedures. To access the meeting virtually, go to the commission's website
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Individuals who plan to attend in person and who require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Laura E. Sinram, Acting Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
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 15, 2022.
1.
Board of Governors of the Federal Reserve System.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than July 5, 2022.
1.
Board of Governors of the Federal Reserve System.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than June 30, 2022.
1.
Board of Governors of the Federal Reserve System.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
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 30, 2022.
1.
Board of Governors of the Federal Reserve System.
Agency for Healthcare Research and Quality (AHRQ), Department of Health and Human Services.
Notice of public meeting.
This notice announces a meeting of the National Advisory Council for Healthcare Research and Quality.
The meeting will be held on Thursday, July 21, 2022, from 12:30 p.m. to 4:30 p.m.
The meeting will be held virtually for the public. Members of the National Advisory Council will be able to participate in-person or virtually.
Jaime Zimmerman, Designated Management Official, at the Agency for Healthcare Research and Quality, 5600 Fishers Lane, Mail Stop 06E37A, Rockville, Maryland, 20857, (301) 427-1456. For press-related information, please contact Bruce Seeman at (301) 427-1998 or
Closed captioning will be provided during the meeting. If another reasonable accommodation for a disability is needed, please contact the Food and Drug Administration (FDA) Office of Equal Employment Opportunity and Diversity Management on (301) 827-4840, no later than Monday, May 2, 2022. The agenda, roster, and minutes will be available from Ms. Heather Phelps, Committee Management Officer, Agency for Healthcare Research and Quality, 5600 Fishers Lane, Rockville, Maryland, 20857. Ms. Phelps' phone number is (301) 427-1128.
In accordance with section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App., this notice announces a meeting of the National Advisory Council for Healthcare Research and Quality (the Council). The Council is authorized by Section 941 of the Public Health Service Act, 42 U.S.C. 299c. In accordance with its statutory mandate, the Council is to advise the Secretary of the Department of Health and Human Services and the Director of AHRQ on matters related to AHRQ's conduct of its mission including providing guidance on (A) priorities for health care research, (B) the field of health care research including training needs and information dissemination on health care quality and (C) the role of the Agency in light of private sector activity and opportunities for public private partnerships. The Council is composed of members of the public, appointed by the Secretary, and Federal ex-officio members specified in the authorizing legislation.
On Thursday, July 21, 2022, NAC members will meet to conduct preparatory work prior to convening the Council meeting at 12:30 p.m., with the call to order by the Council Chair and approval of previous Council summary notes. The meeting will begin with an introduction of NAC members and a report by the AHRQ Director. The NAC will then commence a discussion of the meaning of quality across healthcare delivery systems in the future and the impact of innovations in the healthcare marketplace. The meeting is open to the public and will adjourn at 4:30 p.m. For information regarding how to access the meeting as well as other meeting details, including information on how to make a public comment, please go to
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “National Notifiable Diseases Surveillance System (NNDSS)” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on February 14, 2022 to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information,
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Notifiable Diseases Surveillance System (NNDSS) (OMB Control No. 0920-0728, Exp. 3/31/2024)—Revision—Center for Surveillance, Epidemiology and Laboratory Services (CSELS), Centers for Disease Control and Prevention (CDC).
The Public Health Services Act (42 U.S.C. 241) authorizes CDC to disseminate nationally notifiable condition information. The National Notifiable Diseases Surveillance System (NNDSS) is based on data collected at the state, territorial and local levels as a result of legislation and regulations in those jurisdictions that require health care providers, medical laboratories, and other entities to submit health-related data on reportable conditions to public health departments. These reportable conditions, which include infectious and non-infectious diseases, vary by jurisdiction depending upon each jurisdiction's health priorities and needs. Each year, the Council of State and Territorial Epidemiologists (CSTE), supported by CDC, determines which reportable conditions should be designated nationally notifiable or under standardized surveillance.
CDC requests a three-year approval for a Revision for the NNDSS (OMB Control No. 0920-0728, Exp. 3/31/2024). This Revision includes requests for approval to: (1) Receive case notification data for Alpha-gal syndrome (AGS), a new condition under standardized surveillance (CSS); (2) receive Sexual Orientation and Gender Identity (SOGI) and Birth Sex data elements (with United States Core Data for Interoperability (USCDI) value sets) for sexually transmitted diseases (STD) and Hepatitis; (3) receive an extension of three years to continue to receive the current SOGI data elements for STD; and (4) receive new disease-specific data elements for AGS, COVID-19, Cryptosporidiosis, Cyclosporiasis, Hepatitis, and STD (not congenital).
The NNDSS currently facilitates the submission and aggregation of case notification data voluntarily submitted to CDC from 60 jurisdictions: Public health departments in every U.S. state, New York City, Washington DC, five U.S. territories (American Samoa, the Commonwealth of Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands), and three freely associated states (Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau). This information is shared across jurisdictional boundaries and both surveillance and prevention and control activities are coordinated at regional and national levels.
Over 90% of case notifications are encrypted and submitted to NNDSS electronically from already existing databases by automated electronic messages. When automated transmission is not possible, case notifications are faxed, emailed, or uploaded to a secure network or entered into a secure website. All case notifications that are faxed or emailed are done so in the form of an aggregate weekly or annual report, not individual cases. These different mechanisms used to send case notifications to CDC vary by the jurisdiction and the disease or condition. Jurisdictions remove most personally identifiable information (PII) before data are submitted to CDC, but some data elements (
The burden estimates include the number of hours that the public health department uses to process and send case notification data from their jurisdiction to CDC. Specifically, the burden estimates include separate burden hours incurred for automated and non-automated transmissions, separate weekly burden hours incurred for modernizing surveillance systems as part of message mapping guide (MMG) implementation, separate burden hours incurred for annual data reconciliation and submission, and separate one-time burden hours incurred for the addition of new diseases and data elements. The burden estimates for the one-time burden for reporting jurisdictions are for the addition of case notification data for AGS; and disease-specific data elements for AGS, COVID-19, Cryptosporidiosis, Cyclosporiasis, Hepatitis, and STD (not congenital).
CDC requests OMB approval for an estimated 18,294 burden hours, a decrease from the previously approved 18,954 due to fewer disease-specific data elements being added. There is no cost to respondents other than the time to participate.
Notice.
The Centers for Disease Control and Prevention (CDC) is seeking nominations for membership on the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment (CHACHSPT). The CHACHSPT consists of 18 experts in fields associated with public health; epidemiology; laboratory practice; immunology; infectious diseases; drug abuse; behavioral science; health education; healthcare delivery; state health programs; clinical care; preventive health; medical education; health services and clinical research; and healthcare financing, who are selected by the Secretary of the U.S. Department of Health and Human Services (HHS).
Nominations for membership on the CHACHSPT must be received no later than October 1, 2022. Packages received after this time will not be considered for the current membership cycle.
All nominations should be electronically mailed to
Marah Condit, MS, Committee Management Lead, National Center for HIV, Viral Hepatitis, STD, and TB Prevention, CDC, 1600 Clifton Road NE, Mailstop US8-6, Atlanta, Georgia 30329-4027; Telephone: (404) 639-3423; Email:
The Secretary of HHS, and by delegation, the CDC Director and the Administrator, Health Resources and Services Administration (HRSA), are authorized by the Public Health Service Act to: (1) Conduct, encourage, cooperate with, and assist other appropriate public health authorities, scientific institutions, and scientists in the conduct of research, investigations, experiments, demonstrations, and studies related to the cases, diagnosis, treatment, control, and prevention of physical and mental diseases, and other impairments; (2) assist states and their political subdivisions in preventing, suppressing, and treating communicable diseases and other preventable conditions and in promoting health and well-being; (3) assist public and nonprofit private entities in preventing, controlling, and treating sexually transmitted diseases (STDs), including the human immunodeficiency virus (HIV); (4) improve health and achieve health equity through access to quality services and a skilled health workforce and innovative programs; (5) support healthcare services to persons living with or at risk for HIV, viral hepatitis, and other STDs; and (6) advance the education of health professionals and the public from HIV, viral hepatitis, and other STDs.
CHACHSPT meets at least two times each calendar year, or at the discretion of the Designated Federal Officers in consultation with the CHACHSPT co-chairs.
The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of points of view represented and the committee's function. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. The CHACHSPT charter stipulates that the Committee shall include representation of persons with HIV and other affected populations; state and local health and education agencies; HIV/viral hepatitis/
Committee members are Special Government Employees (SGEs), requiring the filing of financial disclosure reports at the beginning of and annually during their terms. Individuals who are selected for appointment will be required to provide detailed information regarding their financial interests and, for example, any work they do for the federal government through research grants or contracts. Disclosure of this information is required in order for CDC ethics officials to determine whether there is a conflict between the SGE's public duties as members of CHACHSPT and their private interests, including an appearance of a loss of impartiality as defined by federal laws and regulations, and to identify any required remedial action needed to address the potential conflict. CDC and HRSA review potential candidates for CHACHSPT membership when a vacancy arises and provide a slate of nominees for consideration to the Secretary of HHS for final selection. CDC and HRSA each publishes a
SGE nominees must be U.S. citizens and cannot be full-time employees of the U.S. Government. Candidates should submit the following items:
A letter of interest or personal statement from the nominee stating how their expertise would inform the work of CHACHSPT
A biographical sketch of the nominee (500 words or fewer)
Current curriculum vitae or resume, including complete contact information (telephone numbers, mailing address, email address)
At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services. Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (
Nominations may be submitted directly by the individual seeking nomination or by the person/organization recommending the candidate. CDC and HRSA will collect and retain nominations received for up to two years to create a pool of potential CHACHSPT nominees. When a vacancy occurs, CDC and HRSA will review nominations and may contact nominees at that time.
Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Well-Integrated Screening and Evaluation for Women Across the Nation Reporting System (WISEWOMAN). The WISEWOMAN program is designed to prevent, detect, and control, hypertension and other cardiovascular disease (CVD) risk factors through services such as health coaching, and evidence informed lifestyle programs, which are tailored for individual and group behavior change.
CDC must receive written comments on or before August 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0074 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7118; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Well-Integrated Screening and Evaluation for Women Across the Nation (WISEWOMAN) (OMB Control No. 0920-0612, Exp. 8/31/2022)—Extension—National Center for Chronic Disease and Public Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The WISEWOMAN program, sponsored by the CDC, provides services to low income, uninsured, or underinsured women aged 40-64. The WISEWOMAN program is designed to prevent, detect, and control hypertension and other cardiovascular disease (CVD) risk factors through healthy behavior support services which are tailored for individual and group behavior change. The WISEWOMAN program provides services to women who are jointly enrolled in the National Breast and Cervical Cancer Early Detection Program (NBCCEDP), which is also administered by CDC.
The WISEWOMAN program is administered by state health departments and tribal programs. In 2018, a new five-year cooperative agreement was awarded under Funding Opportunity Announcement DP18-1816, subject to the availability of funds. CDC collects two types of information from WISEWOMAN awardees, which is submitted in an electronic data file to CDC twice per year. The Minimum Data Elements (MDE) file contains data using a unique identifier with client-level information about CVD risk factors and types of healthy behavior support services for participants served by the program. The estimated burden per response for the MDE file is 24 hours. The Annual Progress Report provides a narrative summary of each awardee's objectives and the activities undertaken to meet program goals. The estimated burden per response is 16 hours.
There are no changes to the information collected. CDC will continue to use the information collected from WISEWOMAN awardees to support program monitoring and improvement activities, evaluation, and assessment of program outcomes. The overall program evaluation helps to demonstrate program accomplishments and strengthen the evidence for strategy implementation for improved engagement of underserved populations. It can also determine whether the identified strategies and associated activities can be implemented at various levels within a state or tribal organization. Evaluation is also designed to demonstrate how WISEWOMAN can obtain cardiovascular disease health outcome data on at-risk populations, promote public education about CVD risk-factors, and improve the availability of healthy behavior support services for under-served women.
CDC requests a two-year Extension of this data collection. The total estimated annual burden hours are 2,240. Participation in this information collection is required as a condition of cooperative agreement funding. There are no costs to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a proposed information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Artificial Stone Countertops: Exposures, Controls, Surveillance, & Translation. The purpose of the proposed data collection is to conduct a survey with artificial stone countertop fabrication facilities to better understand, work practices and controls related to respirable crystalline silica, barriers or facilitators to implementation of medical and exposure monitoring requirements, and
CDC must receive written comments on or before August 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0071 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Artificial Stone Countertops: Exposures, Controls, Surveillance, & Translation—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
As a recently introduced technology in the United States, the Artificial Stone (AS) Countertop industry is not well defined; the obligation to monitor workers' health might not be known, considered, or understood; and education on potential hazards and health risks related to respirable crystalline silica (RCS) is limited. Exposure is associated with the development of silicosis, an irreversible, sometimes fatal, but preventable lung disease. Twenty-four cases of silicosis, including two deaths, have been reported among AS fabrication workers in the United States. The anticipated impacts of this project are increased understanding of industry scale, practices, and medical monitoring, and increased collaboration and communication to inform the AS countertop industry of industry hazards, methods to mitigate exposure, and improvement of medical surveillance. Understanding how or if current RCS recommendations and regulations are used by various AS countertop fabrication facilities will identify approaches for improved intervention.
The purpose of the proposed collection is to conduct a survey with AS countertop fabrication facilities to better understand (1) work practices and controls related to respirable crystalline silica, (2) barriers or facilitators to implementation of medical and exposure monitoring requirements, (3) identify areas for potential intervention, and (4) identify countertop fabrication facilities willing to participate in future NIOSH exposure and health research.
The estimate of burden hours is based on an internal pilot test of the survey instrument. In the internal pilot test, 10 simulated interviews were conducted and the average time for reviewing instructions, gathering mock information, and completing the survey was between 10-30 minutes. For the purposes of estimating burden hours, the median time to complete the survey is used. There are approximately 8,694 countertop fabrication establishments in the United States. There are screening questions at the beginning of the survey so all respondents may not actually participate. An estimated 8,600 respondents are anticipated to participate in the survey. CDC requests approval for an estimated 2,150 annual burden hours.
There are no costs to respondents other than their time to participate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a proposed information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Enhanced surveillance of respiratory illness among people experiencing homelessness in Anchorage, Alaska. This project will entail collecting nasopharyngeal swabs from people experiencing respiratory symptoms who are accessing homeless services at congregate and non-congregate shelters in Anchorage, Alaska.
CDC must receive written comments on or before August 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0073 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Enhanced surveillance of Respiratory Illness Among People Experiencing Homelessness in Anchorage, Alaska—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
People experiencing homelessness are at risk for respiratory infectious diseases. This project involves enhanced surveillance for respiratory viruses in congregate and non-congregate homeless shelters to provide evidence to improve public health for people who are experiencing homelessness in Anchorage, Alaska. The project team will collect an upper respiratory specimen (
CDC requests OMB approval for an estimated 500 annual burden hours. There is no cost to respondents other than their time to participate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Extended Evaluation of the National Tobacco Prevention and Control Public Education Campaign. This collection is used to evaluate the
CDC must receive written comments on or before August 1, 2022.
You may submit comments, identified by Docket No. CDC-2022-0071 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7118; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Extended Evaluation of the National Tobacco Prevention and Control Public Education Campaign (OMB Control No. 0920-1083, Exp. 03/31/2023)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In 2012, HHS/CDC launched the National Tobacco Prevention and Control Public Education Campaign,
The goal of the proposed information collection is to evaluate the reach of the
The proposed information collection will include three survey collections per year (nine surveys in total) generally conducted before, during, and after the
Information collected by these surveys include smokers' and nonsmokers' awareness of and exposure to specific
It is important to evaluate the
The total response burden is estimated at 9,308 annual hours. Approval is requested for three years between early fall 2023 and December 2026. Participation is voluntary and there are no costs to respondents other than their time.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by July 5, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the
1. Access CMS' website address at website address at:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Office of Child Support Enforcement, Administration for Children and Families, HHS.
Request for public comment.
The Office of Child Support Enforcement (OCSE), Administration for Children and Families (ACF) is requesting the federal Office of Management and Budget (OMB) approve the Current Population Survey-Child Support Supplement (CPS-CSS), with minor revisions, for an additional three years. The current OMB approval expires on August 31, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
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 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.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine or Oral Fluid (Mandatory Guidelines).
Anastasia Donovan, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N06B, Rockville, Maryland 20857; 240-276-2600 (voice);
In accordance with Section 9.19 of the Mandatory Guidelines, a notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) using Urine and of the laboratories currently certified to meet the standards of the Mandatory Guidelines using Oral Fluid.
The Mandatory Guidelines using Urine were first published in the
The Mandatory Guidelines using Oral Fluid were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71 and allowed urine drug testing only. The Mandatory Guidelines using Urine have since been revised, and new Mandatory Guidelines allowing for oral fluid drug testing have been published. The Mandatory Guidelines require strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on specimens for federal agencies. HHS does not allow IITFs to conduct oral fluid testing.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines using Urine and/or Oral Fluid. An HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that the test facility has met minimum standards. HHS does not allow IITFs to conduct oral fluid testing.
In accordance with the Mandatory Guidelines using Oral Fluid dated October 25, 2019 (84 FR 57554), the following HHS-certified laboratories meet the minimum standards to conduct
At this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Federal Emergency Management Agency, Department of Homeland Security.
Announcement of meetings.
The Federal Emergency Management Agency (FEMA) is holding quarterly status meetings under each of the six Plans of Action, in the corresponding order listed below, to implement the Voluntary Agreement for the Manufacture and Distribution of Critical Healthcare Resources Necessary to Respond to a Pandemic.
• Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Medical Gases to Respond to COVID-19.
• Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Personal Protective Equipment (PPE) to Respond to COVID-19.
• Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Diagnostic Test Kits and other Testing Components to Respond to COVID-19.
• Plan of Action to Establish a National Strategy for the Manufacture,
• Plan of Action to Establish a National Strategy for the Coordination of National Multimodal Healthcare Supply Chains to Respond to COVID-19.
• Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Drug Products, Drug Substances, and Associated Medical Devices to Respond to COVID-19.
• Thursday, June 2, 2022, from 2:00 p.m. to 3:00 p.m. Eastern Time (ET).
• Thursday, June 16, 2022, from 1:30 p.m. to 2:30 p.m. ET.
• Thursday, June 23, 2022, from 1:30 p.m. to 2:30 p.m. ET.
• Thursday, June 30, 2022, from 1:30 p.m. to 2:30 p.m. ET.
• Thursday, July 21, 2022, from 1:30 p.m. to 2:30 p.m. ET.
• Tuesday, July 26, 2022, from 1:30 p.m. to 2:30 p.m. ET.
Mary Anne Lyle, Office of Business, Industry, and Infrastructure Integration, via email at
Notice of these meetings is provided as required by section 708(h)(8) of the Defense Production Act (DPA), 50 U.S.C. 4558(h)(8), and consistent with 44 CFR part 332.
The DPA authorizes the making of “voluntary agreements and plans of action” with representatives of industry, business, and other interests to help provide for the national defense.
On August 17, 2020, after the appropriate consultations with the Attorney General and the Chairman of the Federal Trade Commission, FEMA completed and published in the
On December 7, 2020, the first plan of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Personal Protective Equipment (PPE) to Respond to COVID-19 (PPE Plan of Action)—was finalized.
On May 24, 2021, four additional plans of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Diagnostic Test Kits and other Testing Components to respond to COVID-19, the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Drug Products, Drug Substances, and Associated Medical Devices to respond to COVID-19, the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Medical Devices to respond to COVID-19, and the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Medical Gases to respond to COVID-19—were finalized.
On October 15, 2021, the sixth plan of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Coordination of National Multimodal Healthcare Supply Chains to Respond to COVID-19—was finalized.
The meetings are chaired by the FEMA Administrator's delegates from the Office of Response and Recovery (ORR) and Office of Policy and Program Analysis (OPPA), attended by the Attorney General's delegates from the U.S. Department of Justice, and attended by the Chairman of the Federal Trade Commission's delegates. In implementing the Voluntary Agreement, FEMA adheres to all procedural requirements of 50 U.S.C. 4558 and 44 CFR part 332.
1. Convene the Requirements Sub-Committees under each of the six Plans of Action to establish priorities related to the COVID-19 response under the Voluntary Agreement.
2. Gather Requirements Sub-Committee Participants and Attendees to ask targeted questions for situational awareness.
3. Identify pandemic-related information gaps and areas that merit sharing by holding these regular quarterly meetings of the Requirements Sub-Committees with key stakeholders.
4. Identify potential Objectives and Actions that should be completed under the Requirements Sub-Committees.
The Sponsor of the Voluntary Agreement, the FEMA Administrator, found that these meetings to implement the Voluntary Agreement involve matters which fall within the purview of matters described in 5 U.S.C. 552b(c) and the meetings are therefore closed to the public.
Specifically, these meetings may require participants to disclose trade secrets or commercial or financial information that is privileged or confidential. Disclosure of such information allows for meetings to be closed to the public pursuant to 5 U.S.C. 552b(c)(4).
The success of the Voluntary Agreement depends wholly on the
A resulting loss of support by the participants for the Voluntary Agreement would significantly hinder the implementation of the Agency's objectives. Thus, these meeting closures are permitted pursuant to 5 U.S.C. 552b(c)(9)(B).
Department of Homeland Security (DHS).
60-Day notice and request for comments.
The Department of Homeland Security, will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until August 1, 2022. This process is conducted in accordance with 5 CFR 1320.1.
You may submit comments, identified by docket number Docket # DHS-2022-0031, at:
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On February 2, 2021 President Biden signed Executive Order 14012 Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The role of the White House Domestic Policy Council (DPC) is to convene executive departments and agencies (agencies) to coordinate the formulation and implementation of the Administration's domestic policy objectives. Consistent with that role, the DPC shall coordinate the Federal Government's efforts to welcome and support immigrants, including refugees, and to catalyze State and local integration and inclusion efforts. In furtherance of these goals, the DPC shall convene a Task Force on New Americans, which shall include members of agencies that implement policies that impact immigrant communities.
In response to E.O. 14012, on July 2, 2021, the Secretaries of Homeland Security and Veterans Affairs announced a new joint initiative, the Immigrant Military Members and Veterans Initiative (IMMVI), to support our Nation's noncitizen service members, veterans, and their immediate family members and directed their departments to identify and prioritize the return of military service members, veterans, and their immediate family members who were unjustly removed from the United States and ensure that they receive the benefits to which they may be entitled.
The information to be collected for self-disclosure would include:
To carry out the goals of IMMVI, DHS is proposing this new data collection to offer noncitizen current and former military members and their families an opportunity to seek assistance from DHS. The purpose of this information collection is to achieve efficiencies in making contact with individuals, better understand their needs, and track and report the number and types of inquiries received. This information will assist DHS in improving access to immigration services and VA health benefits. DHS plans to collect relevant information to provide assistance at the point the individual submits this information on the new website for benefits and immigration assistance. The information collected through this public facing webform will be voluntarily provided by the users.
A new webform hosted on dhs.gov will be established to allow for individuals to submit the necessary information to make contact with the government to seek assistance. Additionally, the government provides an email address for those who are not able to access the webform. The government will then reach out to the individual to provide them with the necessary information needed to request immigration or VA benefits. The progress of the inquiries will be tracked in a DHS case management system.
The non-citizen current or former servicemember or their family member will submit their information through a webform on
If the collection of information impacts small businesses or other small entities (Item 5 of OMB Form 83-I), describe any methods used to minimize burden.
All information received through the DHS website will be reviewed by trained DHS federal staff assigned to IMMVI and stored in a DHS case management system. No information will be shared with other agencies without the appropriate privacy releases from the individuals accessing the portal. All information received through the portal and any actions taken in response to the information collected will be stored in a DHS case management system.
This is a new information collection request.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the
The Office of Partnership and Engagement (OPE), The Department of Homeland Security (DHS).
Notice of a closed Federal Advisory Committee meeting.
The Homeland Security Advisory Council (HSAC) will meet virtually on Friday, June 17, 2022. The meeting will be closed to the public.
The meeting will take place from 10:30 a.m. to 11:15 a.m. ET on Friday, June 17, 2022.
Michael Miron at 202-282-8000 or
Notice of this meeting is given under Section 10(a) of the Federal Advisory Committee Act (FACA), Public Law 92-463 (5 U.S.C. Appendix), which requires a portion of each FACA committee meeting to be open to the public unless the President, or the head of the agency to which the advisory committee reports, determines that a portion of the meeting may be closed to the public in accordance with 5 U.S.C. 552b(c).
The HSAC provides organizationally independent, strategic, timely, specific, actionable advice, and recommendations to the Secretary of Homeland Security on matters related to homeland security. The Council consists of senior executives from government, the private sector, academia, law enforcement, and non-governmental organizations.
The HSAC will meet in a closed session from 10:30 a.m. to 11:15 a.m. ET to participate in sensitive discussions with DHS senior leadership regarding DHS Southwest Border operations.
The HSAC will participate in a sensitive operational discussion containing For Official Use Only and Law Enforcement Sensitive information. This discussion will include information regarding threats facing the United States at the Southwest Border and how DHS plans to address those threats. The session is closed pursuant to 5 U.S.C. 552b(c)(7) and(9)(B).
Fish and Wildlife Service, Interior.
Notice of receipt of application; proposed incidental harassment authorization; draft environmental assessment; request for comments.
We, the U.S. Fish and Wildlife Service, in response to a request under the Marine Mammal Protection Act of 1972, as amended, from the United States Coast Guard, propose to authorize nonlethal, incidental take by harassment of small numbers of the Southeast Alaska stock of northern sea otters between July 1, 2022, and June 30, 2023. The applicant requested this authorization for take that may result from activities associated with a floating dock expansion project in the Tongass Narrows at the U.S. Coast Guard Base Ketchikan. We estimate that this project may result in the nonlethal incidental take of up to five northern sea otters from the Southeast Alaska stock. This proposed authorization, if finalized, will be for up to 35 takes of 5 northern sea otters by Level B harassment only. No injury or mortality is expected or will be authorized.
Comments on the proposed incidental harassment authorization and the accompanying draft environmental assessment must be received by July 5, 2022.
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Sierra Franks, Marine Mammals Management, U.S. Fish and Wildlife Service, MS-341, 1011 East Tudor Road, Anchorage, Alaska, 99503, by email at
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972 (MMPA; 16 U.S.C. 1361,
(1) Is of small numbers of marine mammals of a species or stock;
(2) will have a negligible impact on such species or stocks; and
(3) will not have an unmitigable adverse impact on the availability of these species or stocks for taking for subsistence uses by Alaska Natives.
If the requisite findings are made, we will issue an authorization that sets forth the following, where applicable:
(a) Permissible methods of taking;
(b) means of effecting the least practicable adverse impact on such species or stock and its habitat and the availability of the species or stock for subsistence uses; and
(c) requirements for monitoring and reporting of such taking by harassment, including, in certain circumstances, requirements for the independent peer review of proposed monitoring plans or other research proposals.
The term “take” means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. “Harassment” means any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (the MMPA defines this as “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 (the MMPA defines this as “Level B harassment”).
The terms “negligible impact” and “unmitigable adverse impact” are defined in 50 CFR 18.27 (
The term “small numbers” is also defined in 50 CFR 18.27. However, we do not rely on that definition here as it conflates “small numbers” with “negligible impacts.” We recognize “small numbers” and “negligible impact” as separate and distinct considerations when reviewing requests for incidental harassment authorizations (IHA) under the MMPA (see
The term “least practicable adverse impact” is not defined in the MMPA or its enacting regulations. For this IHA, we ensure the least practicable adverse impact by requiring mitigation measures that are effective in reducing the impact of project activities, but they are not so restrictive as to make project activities unduly burdensome or impossible to undertake and complete.
If the requisite findings are made, we will issue an IHA, which will set forth the following, where applicable: (i) Permissible methods of taking; (ii) 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 subsistence uses by coastal-dwelling Alaska Natives (if applicable); and (iii) requirements for monitoring and reporting such taking by harassment.
On September 10, 2021, the United States Coast Guard (hereafter “USCG” or “the applicant”) submitted an adequate and complete request to the Service for authorization to take by Level B harassment a small number of northern sea otters (
The specified activity (the “project”) involves installation of ten 61-centimeter (cm) (24-inch (in)) steel guide pipes for a floating dock section at the USCG Base Ketchikan. Pipes will be installed over a period of up to 30 days between July 1, 2022, and June 30, 2023. The project will entail three phases of sound-producing construction. First, depending upon the overburden thickness and bedrock bottom conditions, pre-drilling sockets for each guide pile would be drilled. Two piles are expected to be drilled per day, taking 60 minutes each, for a total of 2 hours of rock-socket drilling noise per day. Following pre-drilling, 61-cm (24-in) steel pipes would be inserted into the rock sockets and a vibratory hammer would be used to insert and position the pile within individual sockets. Finally, an impact driver would be used to proof the newly installed piles by tapping each pile five times and then stabilizing using tremie concrete in the pile socket.
Additional project details may be reviewed in the application materials available as described under
The northern sea otter is the only marine mammal under the Service's jurisdiction that normally occupies the Northeast Pacific Ocean. Sea otters in Alaska are represented by three stocks: The Southwest Alaska stock, the Southcentral Alaska stock, and the Southeast Alaska stock. Those in the Northeast Pacific Ocean belong to the Southeast Alaska stock. Detailed information about the biology of the Southeast Alaska stock can be found in the most recent stock assessment report (USFWS 2014), which can be found in
Sea otters may be distributed anywhere within the specific geographic region other than upland areas; however, they generally occur in shallow water near the shoreline. They are most commonly observed within the 40-meter (m) (131-foot (ft)) depth contour (USFWS 2014), although they can be found in areas with deeper water. Ocean depth is generally correlated with distance to shore, and sea otters typically remain within 1 to 2 kilometers (km) (0.62 to 1.24 miles (mi)) of shore (Riedman and Estes 1990). They tend to be found closer to shore during storms, but they venture farther out during good weather and calm seas (Lensink 1962; Kenyon 1969). In the 14 aerial surveys conducted from 1995 to 2012 in Southeast Alaska, 95 percent of otters were found in areas shallower than 40 m (131 ft) (Tinker et al. 2019). Areas important to mating for the Southeast Alaska stock include marine coastal regions containing adequate food resources within the 40-m (131-ft) depth contour.
The 1995-2012 survey data was incorporated into a spatiotemporal model of ecological diffusion using a Bayesian hierarchical framework (Eisaguirre et al. 2021). This model was used to develop the most recent estimate of 26,347 otters in the Southeast Alaska stock and generated otter abundance estimates at a resolution of 400 m by 400 m. Abundance values within the project area ranged from 0.13 to 0.27 otters per 0.16 square kilometer (km
The documented home range sizes and movement patterns of sea otters illustrate the types of movements that could be seen among otters responding to the proposed activities. Sea otters are nonmigratory and generally do not disperse over long distances (Garshelis and Garshelis 1984). They usually remain within a few kilometers of their established feeding grounds (Kenyon 1981). Breeding males stay for all or part of the year in a breeding territory covering up to 1 km (0.62 mi) of coastline while adult females have home ranges of approximately 8 to 16 km (5 to 10 mi), which may include one or more male territories. Juveniles move greater distances between resting and foraging areas (Lensink 1962; Kenyon 1969; Riedman and Estes 1990; Estes and Tinker 1996). Although sea otters generally remain local to an area, they are capable of long-distance travel. Otters in Alaska have shown daily movement distances greater than 3 km (1.9 mi) at speeds up to 5.5 km per hour (km/hr) (3.4 mi per hour (mi/h)) (Garshelis and Garshelis 1984).
The specified activities have the potential to result in take of sea otters by harassment from noise. Here, we characterize “noise” as sound released into the environment from human activities that exceeds ambient levels or
Whether a specific noise source will affect a sea otter depends on several factors, including the distance between the animal and the sound source, the sound intensity, background noise levels, the noise frequency, the noise duration, and whether the noise is pulsed or continuous. The actual noise level perceived by individual sea otters will depend on distance to the source, whether the animal is above or below water, atmospheric and environmental conditions, and aspects of the noise emitted.
We expect the actual number of otters experiencing Level B harassment by noise to be five or fewer. While individual otters may be taken more than once, the total number of incidental takes of sea otters is expected to be less than 35.
Pile-driving activities produce sound frequencies that fall within the hearing range of sea otters. Controlled sound exposure trials on southern sea otters (
Exposure to high levels of sound may cause changes in behavior, masking of communications, temporary or permanent changes in hearing sensitivity, discomfort, and injury to marine mammals. Unlike other marine mammals, sea otters do not rely on sound to orient themselves, locate prey, or communicate underwater; therefore, masking of communications by anthropogenic sound is less of a concern than for other marine mammals. However, sea otters do use sound for communication in air (especially mothers and pups; McShane et al. 1995) and may avoid predators by monitoring underwater sound (Davis et al. 1987).
Noise exposure criteria for identifying underwater noise levels capable of causing Level A harassment (injury) to marine mammal species have been established for “other marine carnivores,” which includes sea otters using the same methods as those used by the National Marine Fisheries Service (NMFS) (Southall et al. 2019). These criteria are based on estimated levels of sound exposure capable of causing a permanent shift in sensitivity of hearing (
Sound exposure thresholds incorporate two metrics of exposure: The peak level of instantaneous exposure likely to cause a PTS and the cumulative sound exposure level during a 24-hour period (SEL
Thresholds at which TTS is expected to occur have been used as a proxy for Level B harassment (see 70 FR 1871, January 11, 2005; 71 FR 3260, January 20, 2006; and 73 FR 41318, July 18, 2008). Southall et al. (2007) derived TTS thresholds for pinnipeds based on 212 dB peak and 171 dB SEL
The NMFS criteria (2018) do not identify thresholds for avoidance of Level B harassment. For pinnipeds, NMFS has adopted a 160-dB threshold for Level B harassment from exposure to impulse noise and a 120-dB threshold for continuous noise (NMFS 1998; HESS 1999; NMFS undated). These thresholds were developed from observations of mysticete (baleen) whales responding to airgun operations (
We have evaluated these thresholds and determined that the Level B harassment threshold of 120 dB for nonimpulsive noise is not applicable to sea otters. The 120-dB threshold is based on studies conducted by Malme et al. in the 1980s, during which gray whales (
Based on the lack of sea otter disturbance response or any other reaction to the 1980's playback studies and the absence of a clear pattern of disturbance or avoidance behaviors attributable to underwater sound levels up to approximately 160 dB resulting from low-frequency broadband noise, we assume 120 dB is not an appropriate behavioral response threshold for sea otters exposed to continuous underwater noise.
Thus, using the best available scientific information about sea otters, the Service has set 160 dB of received underwater sound as a threshold for Level B harassment for sea otters for this proposed IHA based on the work of Ghoul and Reichmuth (2012a, b), McShane et al. (1995), NOAA (2005), Riedman (1983), Richardson et al. (1995), and others. Exposure to in-water noise levels between 125 Hz and 38 kHz that are greater than 160 dB—for both impulsive and nonimpulsive sound sources—will be considered Level B harassment; thresholds for potentially injurious Level A harassment will be considered 232 dB peak or 203 dB SEL for impulsive sounds and 219 dB SEL for continuous sounds (table 1).
The available studies of sea otter behavior suggest that sea otters may be more resistant to the effects of sound disturbance and human activities than other marine mammals. For example, at Soberanes Point, California, Riedman (1983) examined changes in the behavior, density, and distribution of southern sea otters that were exposed to recorded noises associated with oil and gas activity. The underwater sound sources were played at a level of 110 dB and a frequency range of 50 Hz to 20 kHz and included production platform activity, drillship, helicopter, and semisubmersible sounds. Riedman (1983) also observed the sea otters during seismic airgun shots fired at decreasing distances from the nearshore environment (50, 20, 8, 3.8, 3, 1, and 0.5 nautical miles (nm)) at a firing rate of 4 shots per minute and a maximum air volume of 4,070 cubic inches (in
While at the surface, turbulence from wind and waves attenuates noise more quickly than in deeper water, reducing potential noise exposure (Greene and Richardson 1988; Richardson et al. 1995). Additionally, turbulence at the water's surface limits the transference of sound from water to air. A sea otter with its head above water will be exposed to only a small fraction of the sound energy traveling through the water beneath it. The average time spent above the water each day resting and grooming varies between male and female sea otters and seasonally. Esslinger et al. (2014) found in the summer months (
Sea otters generally show a high degree of tolerance to noise. In an exploration of potential deterrent techniques, Davis et al. (1988) found northern sea otters exhibited limited response to a variety of airborne and underwater sounds, including a warble tone, sea otter pup calls, killer whale (
In locations that lack frequent human activity, sea otters appear to have a lower threshold for outward signs of disturbance. Sea otters in Alaska have exhibited escape behaviors in response to the presence and approach of vessels. Behaviors included diving or actively swimming away from a boat, hauled-out sea otters entering the water, and groups of sea otters disbanding and swimming in multiple different directions (Udevitz et al. 1995). Sea otters in Alaska have also been shown to avoid areas with heavy boat traffic but return to those same areas during seasons with less traffic (Garshelis and Garshelis 1984). In Cook Inlet, otters drifting on a tide trajectory that would have taken them within 500 m (0.3 mi) of an active offshore drilling rig tended to swim to change their angle of drift to avoid a close approach despite near-ambient noise levels from the work (BlueCrest 2013).
Individual sea otters in Southeast Alaska will likely show a range of responses to noise from pile-driving activities. Some otters will likely show startle responses, change direction of travel, dive, or prematurely surface. Sea otters reacting to survey activities may
The reactions of wildlife to disturbance can range from short-term behavioral changes to long-term impacts that affect survival and reproduction. When disturbed by noise, animals may respond behaviorally (
These examples illustrate direct effects on survival and reproductive success, but disturbances can also have indirect effects. Response to noise disturbance is considered a nonlethal stimulus that is similar to an antipredator response (Frid and Dill 2002). Sea otters are susceptible to predation, particularly from killer whales and eagles (
Although an increase in vigilance or a flight response is nonlethal, a tradeoff occurs between risk avoidance and energy conservation. An animal's reactions to noise disturbance may cause stress and direct an animal's energy away from fitness-enhancing activities such as feeding and mating (Frid and Dill 2002; Goudie and Jones 2004). For example, southern sea otters in areas with heavy recreational boat traffic demonstrated changes in behavioral time budgeting showing decreased time resting and changes in haul-out patterns and distribution (Benham et al. 2006; Maldini et al. 2012). Chronic stress can also lead to weakened reflexes, lowered learning responses (Welch and Welch 1970; van Polanen Petel et al. 2006), compromised immune function, decreased body weight, and abnormal thyroid function (Seyle 1979).
Changes in behavior resulting from anthropogenic disturbance can include increased agonistic interactions between individuals or temporary or permanent abandonment of an area (Barton et al. 1998). The extent of previous exposure to humans (Holcomb et al. 2009), the type of disturbance (Andersen et al. 2012), and the age or sex of the individuals (Shaughnessy et al. 2008; Holcomb et al. 2009) may influence the type and extent of response.
Physical and biological features of habitat essential to the conservation of sea otters include the benthic invertebrates (urchins, mussels, clams, etc.) that otters eat and the shallow rocky areas and kelp beds that provide cover from predators. Important sea otter habitat in the project area include coastal areas within the 40-m (131-ft) depth contour where high densities of otters have been detected. The MMPA allows the Service to identify avoidance and minimization measures for effecting the least practicable adverse impact of the specified activity on important habitats. Pile-driving activities may impact sea otters within this important habitat; however, the project is not likely to cause lasting effects to habitat. Although a permanent floating dock is being constructed as a part of this project, the area where it is being placed is not likely to serve as important habitat as it is immediately adjacent to an existing operational dock.
The primary prey species for sea otters are sea urchins, abalone, clams, mussels, crabs, and squid (Tinker and Estes 1999). When preferential prey are scarce, otters will also eat kelp, turban snails (
While any activity that may disturb the ocean bottom may cause a temporary increase in suspended sediment, turbidity is likely to have little impact on sea otters and prey species (Todd et al. 2015); however, there may be some impacts from increased sedimentation. Sea otters attempting to forage near these activities could have reduced visibility that may result in failed foraging attempts and a potential shift to less-preferred prey species. This scenario may result in more energy spent foraging or processing the prey items; however, the impacts of a change in energy expenditure are not likely seen at the population level (Newsome et al. 2015). Additionally, the benthic invertebrates may be impacted by increased sedimentation, which could alter the benthic community resulting in more opportunistic species that recover quickly to activities resulting in sedimentation, such as dredging (Kotta et al. 2009). Although foraging of sea otters could be impacted through sedimentation, it is more likely that sea otters would be temporarily displaced from the area due to noise and not from effects due to increased turbidity.
Several recent reviews and empirical studies have addressed the effects of noise on invertebrates (Carroll et al. 2017). Behavioral changes, such as an increase in lobster (
The effects of increased sound levels on benthic invertebrate larvae have been
While these studies provide evidence of deleterious effects to invertebrates as a result of increased sound levels, Carroll et al. (2017) caution that there is a wide disparity between results obtained in field and laboratory settings. In experimental settings, changes were observed only when animals were housed in enclosed tanks and many were exposed to prolonged bouts of continuous, pure tones. We would not expect similar results in open marine conditions. It is unlikely that noises generated by survey activities will have any lasting effect on sea otter prey given the short-term duration of sounds produced by each component of the proposed work.
The proposed specified activities will occur near marine subsistence harvest areas used by Alaska Natives from Ketchikan and the surrounding areas. The majority of sea otter harvests in these areas occur around Prince of Wales, Gravinia, and Kuiu Islands. Between 2018 and 2021, approximately 118 sea otters were harvested from these areas, averaging 30 per year (although numbers from 2021 are preliminary). Only two otters were taken in Ketchikan during this time period (one in 2020, one in 2021).
The proposed project would occur at an active USCG facility. The area potentially affected by the proposed project does not significantly overlap with current subsistence harvest areas. Construction activities will not preclude access to hunting areas or interfere in any way with individuals wishing to hunt. As a part of their environmental assessment completed in compliance with the National Environmental Policy Act, the USCG contacted the Ketchikan Indian Community and the Organized Village of Saxman. Both communities indicated that they did not have concerns with the project and do not believe it will impact the harvest of marine mammals. If any conflicts are identified in the future, the USCG will develop a Plan of Cooperation (POC) specifying the particular steps necessary to minimize any effects the project may have on subsistence harvest.
If an IHA for the project is issued, it must specify means for effecting the least practicable adverse impact on sea otters and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance and the availability of sea otters for subsistence uses by coastal-dwelling Alaska Natives.
In evaluating what mitigation measures are appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses, we considered the manner and degree to which the successful implementation of the measures are expected to achieve this goal. We considered the nature of the potential adverse impact being mitigated (likelihood, scope, range), the likelihood that the measures will be effective if implemented, and the likelihood of effective implementation. We also considered the practicability of the measures for applicant implementation (
To reduce the potential for disturbance from acoustic stimuli associated with the activities, the applicants have proposed mitigation measures including the following:
• Development of a marine mammal monitoring and mitigation plan;
• Establishment of shutdown and monitoring zones;
• Visual mitigation monitoring by designated Protected Species Observers (PSO);
• Site clearance before startup;
• Limiting in-water activity to daylight hours;
• Soft-start procedures; and
• Shutdown procedures.
These measures are further specified under Proposed Authorization, part
As discussed in
• Swimming away at a fast pace on belly (
• Repeatedly raising the head vertically above the water to get a better view (spyhopping) while apparently agitated or while swimming away;
• In the case of a pup, repeatedly spyhopping while hiding behind and holding onto its mother's head;
• Abandoning prey or feeding areas;
• Temporary disruption to nurse and/or rest (applies to dependent pups);
• Temporary disruption to rest (applies to independent animals);
• Temporary disruption to use movement corridors;
• Temporary disruption to mating behaviors;
• Shifting/jostling/agitation in a raft so that the raft disperses;
• Sudden diving of an entire raft; or
• Flushing animals off a haulout.
Reactions capable of causing injury are characterized as Level A harassment events. The project is not anticipated to result in Level A harassment due to exposure of otters to noise capable of causing PTS. However, it is also important to note that, depending on the duration and severity of the above-described Level B harassment behaviors, such responses could constitute Level A harassment.
We assumed all animals exposed to underwater sound levels that meet or exceed the acoustic exposure criteria shown in the TTS column of table 1 will experience take by Level B harassment due to exposure to underwater noise. Spatially explicit zones of ensonification were established around the proposed construction location to estimate the number of otters that may be exposed to these sound levels. We determined the number of otters present in the ensonification zones using density information generated by Eisaguirre et al. (2021).
The project can be divided into three major components: rock socket drilling, vibratory hammering, and pile-driving using an impact driver. Each of these components will generate a different type of in-water noise. Vibratory hammering will produce nonimpulsive or continuous noise, impact driving will produce impulsive noise, and down-the-hole rock socket drilling is considered
The level of sound anticipated from each project component was established using recorded data from pile-driving in Kodiak, Alaska (a proxy for rock-socket drilling and vibratory hammering; Denes et al. 2016), and Eugene, Oregon (a proxy for impact driving; Caltrans 2020). The NMFS Technical Guidance and User Spreadsheet (NMFS 2018, 2020) was used to determine the distance at which sound levels would attenuate to Level A harassment thresholds, and empirical data from the proxy projects was used to determine the distance at which sound levels would attenuate to Level B harassment thresholds (table 2). The weighting factor adjustment included in the NMFS User Spreadsheet accounts for sound created in portions of an organism's hearing range where they have less sensitivity. We used the weighting factor adjustment for otariid pinnipeds (2), as they are the closest available physiological and anatomical proxy for sea otters. The spreadsheet also incorporates a transmission loss coefficient, which accounts for the reduction in sound level outward from a sound source. We used the NMFS-recommended transmission loss coefficient of 15 for coastal pile-driving activities to indicate simple spread (NMFS 2020).
To determine the number of sea otters that may experience in-water sound greater than 160 dB, we determined the number of sea otters present in each 400-m × 400-m pixel of the sea otter density raster (figure 2) developed by Eisaguirre et al. (2021) and rounded these values to the nearest whole number. We estimated up to one otter may be present in the rock-socket drilling and vibratory hammering ensonification zones and up to five otters may be present in the impact driving zone. Because these zones overlap (
We estimate 35 takes of 5 sea otters by Level B harassment will occur due to the proposed specified activities. To conduct this analysis and estimate the potential amount of Level B harassment, several critical assumptions were made.
Otter density was calculated using a Bayesian hierarchical model created by Eisaguirre et al. (2021), which includes assumptions that can be found in the original publication.
Sound level estimates for construction activities were generated using sound source verification from recent pile-driving activities in Kodiak, Alaska, and Eugene, Oregon. Environmental conditions in these locations, including water depth, substrate, and ambient sound levels are similar to those in the project location but not identical. Further, estimation of ensonification zones were based on sound attenuation models using a simple spreading loss model. These factors may lead to actual sound values differing slightly from those estimated here.
Finally, the pile-driving activities described here will also create in-air noise. Because sea otters spend over half of their day with their heads above water (Esslinger et al. 2014), they will be exposed to increases in in-air noise from construction equipment. However, we have calculated Level B harassment with the assumption that an individual may be harassed only one time per 24-hour period, and underwater sound levels will be more disturbing and
Sea otters exposed to project-produced sounds are likely to respond with temporary behavioral modification or displacement. Project activities could temporarily interrupt the feeding, resting, and movement of sea otters. Because activities will occur during a limited amount of time and in a localized region, the impacts associated with the project are likewise temporary and localized. The anticipated effects are short-term behavioral reactions and displacement of sea otters near active operations.
Sea otters that encounter the specified activity may exert more energy than they would otherwise due to temporary cessation of feeding, increased vigilance, and retreat from the project area. We expect that affected sea otters will tolerate this exertion without measurable effects on health or reproduction. The anticipated takes will be due to short-term Level B harassment in the form of TTS, startling reactions, or temporary displacement. Chronic exposure to sound levels that cause TTS may lead to PTS (which would constitute Level A harassment) under certain circumstances. While more research into the relationship between chronic noise exposure and PTS is needed (Finneran 2015), existing information indicates that the transition from temporary effects to permanent cellular damage requires a period of time greater than the duration of USCG's specified activities, and as such no PTS is anticipated to result from the USCG's specified activities (Southall et al. 2019).
We estimate 35 instances of take by Level B harassment of 5 northern sea otters from the Southeast Alaska stock due to behavioral responses or TTS associated with noise exposure. These levels represent a small proportion of the most recent stock abundance estimate for the Southeast Alaska stock. Take of 5 otters is 0.019 percent of the best available estimate of the current population size of 26,347 animals in the Southeast Alaska stock (Eisaguirre et al. 2021) (5 ÷ 26,347 = 0.00019). Predicted levels of take were determined based on estimated density of sea otters in the project area and ensonification zones developed using empirical evidence from similar geographic areas. Based on these numbers, we propose a finding that the proposed project will take only a small number of marine mammals of a species or stock.
We propose a finding that any incidental take by level B harassment resulting from the proposed project cannot be reasonably expected to, and is not reasonably likely to, adversely affect the stock through effects on annual rates of recruitment or survival and, therefore, will have no more than a negligible impact on the Southeast Alaska stock of northern sea otters. In making this finding, we considered the best available scientific information, including the biological and behavioral characteristics of the stock, the most recent information on stock distribution and abundance within the area of the specified activities, the current and expected future status of the stock (including existing and foreseeable human and natural stressors), the potential sources of disturbance caused by the project, and the potential responses of marine mammals to this disturbance. In addition, we reviewed applicant-provided materials, information in our files and datasets, published reference materials, and species experts.
Sea otters are likely to respond to proposed activities with temporary behavioral modification or displacement. These reactions are unlikely to have consequences for the long-term health, reproduction, or survival of affected animals. Most animals will respond to disturbance by moving away from the source, which may cause temporary interruption of foraging, resting, or other natural behaviors. Affected animals are expected to resume normal behaviors soon after exposure with no lasting consequences. One otter is estimated to be exposed to construction noise for up to 15 days and four otters are estimated to be exposed to construction noise for up to 5 days, resulting in repeated exposures.
The proposed activities will result in a very small area of increased sound levels above the Level A harassment thresholds. However, the applicant has established a shutdown zone that is greater than the potential Level A harassment zone. Thus, no otters are expected to experience sounds at or above Level A harassment thresholds. Furthermore, Level A harassment is not anticipated as a result of chronic sound exposure because the duration of the specified activities is not believed to be sufficient to cause such effects. (Southall et al. 2019). The area that will experience noise greater than Level B harassment thresholds due to rock-socket drilling and vibratory hammering is very small, and an animal that may be disturbed could easily escape the noise by moving to nearby quiet areas. Further, sea otters spend over half of their time above the surface during the summer months (Esslinger et al. 2014), thus their ears will not be exposed to continuous noise, and the amount of time it may take for permanent injury is considerably longer than that of mammals primarily under water. Some animals may exhibit more severe responses typical of Level B harassment, such as fleeing, ceasing feeding, or flushing from a haul-out. These responses could have temporary, yet significant, biological impacts for affected individuals but are unlikely to result in measurable changes in survival or reproduction.
Although the specified activities may result in approximately 35 incidental takes of 5 otters from the Southeast Alaska stock, we do not expect this level of harassment to affect annual rates of recruitment or survival or result in adverse effects on the stock.
Our proposed finding of negligible impact applies to incidental take associated with the proposed activities as mitigated by the avoidance and minimization measures identified in the USCG's mitigation and monitoring plan. These mitigation measures are designed to minimize interactions with and impacts to sea otters. These measures and the monitoring and reporting procedures are required for the validity of our finding, and adherence to them would be required in a final IHA if issued.
We propose a finding that the USCG's anticipated harassment will not have an unmitigable adverse impact on the availability of the Southeast Alaska stock of northern sea otters for taking for subsistence uses. In making this finding, we considered the lack of overlap between the timing and location of the proposed activities and the timing and location of subsistence harvest activities in the area of the proposed project. We also considered the applicant's consultation with subsistence communities, which indicated no conflicts, proposed measures for avoiding impacts to subsistence harvest, and commitment to development of a POC, should any concerns be identified.
We have prepared a draft environmental assessment in accordance with the NEPA (42 U.S.C. 4321,
Under the ESA (16 U.S.C. 1536(a)(2)), all Federal agencies are required to ensure the actions they authorize are not likely to jeopardize the continued existence of any threatened or endangered species or result in destruction or adverse modification of critical habitat. The proposed project will occur entirely within the range of the Southeast Alaska stock of the northern sea otter, which is not listed as threatened or endangered under the ESA. The measures included in the proposed IHA will not affect other listed species or designated critical habitat.
It is our responsibility to communicate and work directly on a Government-to-Government basis with federally recognized Tribes in developing programs for healthy ecosystems. We are also required to consult with Alaska Native Claims Settlement Act (ANCSA) Corporations in certain circumstances. We seek their full and meaningful participation in evaluating and addressing conservation concerns for protected species. It is our goal to remain sensitive to Alaska Native culture and to make information available to Alaska Natives. Our efforts are guided by the following policies and directives:
(1) The Native American Policy of the Service (January 20, 2016);
(2) the Alaska Native Relations Policy (currently in draft form);
(3) Executive Order 13175 (January 9, 2000) and the Presidential Memorandum on Indigenous Traditional Ecological Knowledge and Federal Decision Making (November 15, 2021);
(4) Department of the Interior Secretarial Orders 3206 (June 5, 1997), 3225 (January 19, 2001), 3317 (December 1, 2011), and 3342 (October 21, 2016); and
(5) the Department of the Interior's policies on consultation with Tribes and with Alaska Native Corporations.
We have evaluated possible effects of the proposed IHA on federally recognized Alaska Native Tribes and ANCSA Corporations. The Service has determined that authorizing the Level B harassment of up to five sea otters from USCG's specified activities would not have any Tribal implications or ANCSA Corporation implications and, therefore, Government-to-Government consultation or Government-to-ANCSA Corporation consultation is not necessary. However, we invite continued discussion, either about the project and its impacts or about our coordination and information exchange throughout the IHA/POC public comment process.
We propose to authorize up to 35 incidental takes by level B harassment of 5 northern sea otters from the Southeast Alaska stock. This authorized take is limited to disruption of behavioral patterns that may be caused by construction activities conducted by the USCG in Ketchikan Alaska, from July 1, 2022, to June 30, 2023. We anticipate no Level A harassment or mortality to northern sea otters resulting from the activities.
1. The taking or harassment of northern sea otters from the Southeast Alaska stock whenever the required conditions, mitigation, monitoring, and reporting measures are not fully implemented as required by the IHA will be prohibited. Failure to follow measures specified may result in the suspension or revocation of the IHA.
2. If take exceeds the level or type identified in the proposed authorization (
3. All operations managers and machine operators must receive a copy of the IHA and maintain access to it for reference at all times during project work. These personnel must understand, be fully aware of, and be capable of implementing the conditions of the IHA at all times during project work.
4. The IHA will apply to activities associated with the proposed project as described in this document and in the USCG request (USCG 2021). Changes to the proposed project without prior authorization may invalidate the IHA.
5. The USCG's request will be approved and fully incorporated into the IHA, unless exceptions are specifically noted herein or in the final IHA. The application includes:
• The USCG's original request for an IHA, dated July 22, 2021; and
• A revised application, dated September 10, 2021.
6. Operators will allow Service personnel or the Service's designated representative to visit project work sites to monitor impacts to sea otters and subsistence uses of sea otters at any time throughout project activities so long as it is safe to do so. “Operators” are all personnel operating under the USCG's authority, including all contractors and subcontractors.
7. Construction activities must be conducted using equipment that generates the lowest practicable levels of underwater sound within the range of frequencies audible to sea otters.
8. During all pile-installation activities, regardless of predicted sound levels, a physical interaction shutdown zone of 20 m (66 ft) must be enforced. If a sea otter enters the shutdown zone, in-water activities must be delayed until either the animal has been visually observed outside the shutdown zone, or 15 minutes have elapsed since the last observation time without redetection of the animal.
9. If the impact driver has been idled for more than 30 minutes, an initial set of three strikes from the impact driver must be delivered at reduced energy, followed by a 1-minute waiting period, before full-powered proofing strikes.
10. In-water activity must be conducted in daylight. If environmental conditions prevent visual detection of sea otters within the shutdown zone, in-water activities must be stopped until visibility is regained.
11. Operators will work with PSOs to apply mitigation measures and will recognize the authority of PSOs up to and including stopping work, except where doing so poses a significant safety risk to personnel.
12. Duties of the PSOs include watching for and identifying sea otters, recording observation details, documenting presence in any applicable monitoring zone, identifying and documenting potential harassment, and working with operators to implement all appropriate mitigation measures.
13. Monitoring of the shutdown zone must continue for 30 minutes following completion of pile installation.
14. Prior to conducting the work, the USCG will take the following steps to reduce potential effects on subsistence harvest of sea otters:
• Avoid work in areas of known sea otter subsistence harvest;
• Discuss the planned activities with subsistence stakeholders including Southeast Alaska villages and traditional councils;
• Identify and work to resolve concerns of stakeholders regarding the project's effects on subsistence hunting of sea otters; and
• If any concerns remain, develop a POC in consultation with the Service and subsistence stakeholders to address these concerns.
15. The USCG must notify the Service at least 48 hours prior to commencement of activities.
16. Reports will be submitted to the Service's MMM weekly during project activities. The reports will summarize project work and monitoring efforts.
17. A final report will be submitted to the Service's MMM within 90 days after completion of work or expiration of the IHA. It will summarize all monitoring efforts and observations, describe all project activities, and discuss any additional work yet to be done. Factors influencing visibility and detectability of marine mammals (
18. Injured, dead, or distressed sea otters that are not associated with project activities (
19. All reports shall be submitted by email to
20. The USCG must notify the Service upon project completion or end of the work season.
If you wish to comment on this proposed authorization, the associated draft environmental assessment, or both documents, you may submit your comments by any of the methods described in
Comments, including names and street addresses of respondents, will become part of the administrative record for this proposal. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comments to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, Interior.
Notice of issuance.
In accordance with the Marine Mammal Protection Act of 1972, as amended, the U.S. Fish and Wildlife Service issued Letters of Authorization for the nonlethal take of polar bears and Pacific walruses incidental to oil and gas industry exploration, development, and production activities in the Beaufort Sea and the adjacent northern coast of Alaska as well as northern sea otters in Cook Inlet, Alaska, in 2021. This notice announces the lists of Letters of Authorizations issued in calendar year 2021. The Letters of Authorization stipulate conditions and methods that minimize impacts to polar bears, Pacific walruses, and northern sea otters from these activities.
Charles Hamilton, Marine Mammal Management, U.S. Fish and Wildlife Service, MS 341, 1011 East Tudor Road, Anchorage, Alaska 99503, by email at
On August 5, 2016, the U.S. Fish and Wildlife Service (Service) published in the
On August 5, 2021, the Service published in the
Each LOA stipulates conditions or methods that are specific to the activity and location. Holders of the LOAs must use methods and conduct activities in a manner that minimizes to the greatest extent practicable adverse impacts on Pacific walruses and polar bears and their habitat, and on the availability of these marine mammals for subsistence purposes. No intentional take or lethal incidental take is authorized under these regulations.
In accordance with section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361
On August 1, 2019, the Service published in the
Each LOA stipulates conditions or methods that are specific to the activity and location. Holders of the LOAs must use methods and conduct activities in a manner that minimizes to the greatest extent practicable adverse impacts on northern sea otters and their habitat and on the availability of northern sea otters for subsistence purposes. No intentional take or lethal incidental take is authorized under these regulations.
In accordance with section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361
Drug Enforcement Administration, Justice.
Notice of application.
The Drug Enforcement Administration (DEA) is providing notice of an application it has received from an entity applying to be registered to manufacture in bulk basic class(es) of controlled substances listed in schedule I. DEA intends to evaluate this and other pending applications according to its regulations governing the program of growing marihuana for scientific and medical research under DEA registration.
Registered bulk manufacturers of the affected basic class(es), and
DEA requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marihuana except by persons who are registered under the CSA to do so for lawful purposes. In accordance with the purposes specified in 21 CFR 1301.33(a), DEA is providing notice that the entity identified below has applied for registration as a bulk manufacturer of schedule I controlled substances. In response, registered bulk manufacturers of the affected basic class(es), and applicants therefor, may submit electronic comments on or objections of the requested registration, as provided in this notice. This notice does not constitute any evaluation or determination of the merits of the application submitted.
The applicant plans to manufacture bulk active pharmaceutical ingredients (API) for product development and distribution to DEA registered researchers. If the application for registration is granted, the registrant would not be authorized to conduct other activity under this registration aside from those coincident activities specifically authorized by DEA regulations. DEA will evaluate the application for registration as a bulk manufacturer for compliance with all applicable laws, treaties, and regulations and to ensure adequate safeguards against diversion are in place.
As this applicant has applied to become registered as a bulk manufacturer of marihuana, the application will be evaluated under the criteria of 21 U.S.C. 823(a). DEA will conduct this evaluation in the manner described in the rule published at 85 FR 82333 on December 18, 2020, and reflected in DEA regulations at 21 CFR part 1318.
In accordance with 21 CFR 1301.33(a), DEA is providing notice that on March 16, 2022, Nusachi Labs, LLC, 2909 Armory Drive, Nashville, Tennessee 37204, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substances:
Drug Enforcement Administration, Justice.
Notice of application.
Sigma Aldrich Research Biochemicals, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before August 1, 2022. Such persons may also file a written request for a hearing on the application on or before August 1, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on December 29, 2021, Sigma Aldrich Research Biochemicals, Inc., 400-600 Summit Drive, Burlington, Massachusetts 01803, applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture reference standards.
Drug Enforcement Administration, Justice.
Notice of application.
Unither Manufacturing LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before July 5, 2022. Such persons may also file a written request for a hearing on the application on or before July 5, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on April 8, 2022, Unither Manufacturing LLC, 331 Clay Road, Rochester, New York 14623-3226, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substance solely for updated analytical testing purposes for European customer requirements. This analysis is required to allow the company to export domestically-manufactured finished dosage forms to foreign markets. No other activity for this drug code is authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
The Drug Enforcement Administration (DEA) is providing notice of an application it has received from an entity applying to be registered to manufacture in bulk basic class(es) of controlled substances listed in schedule I. DEA intends to evaluate this and other pending applications according to its regulations governing the program of growing marihuana for scientific and medical research under DEA registration.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 1, 2022.
DEA requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment
The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marihuana except by persons who are registered under the CSA to do so for lawful purposes. In accordance with the purposes specified in 21 CFR 1301.33(a), DEA is providing notice that the entity identified below has applied for registration as a bulk manufacturer of schedule I controlled substances. In response, registered bulk manufacturers of the affected basic class(es), and applicants therefor, may submit electronic comments on or objections of the requested registration, as provided in this notice. This notice does not constitute any evaluation or determination of the merits of the application submitted.
The applicant plans to manufacture bulk active pharmaceutical ingredients (API) for product development and distribution to DEA registered researchers. If the application for registration is granted, the registrant would not be authorized to conduct other activity under this registration aside from those coincident activities specifically authorized by DEA regulations. DEA will evaluate the application for registration as a bulk manufacturer for compliance with all applicable laws, treaties, and regulations and to ensure adequate safeguards against diversion are in place.
As this applicant has applied to become registered as a bulk manufacturer of marihuana, the application will be evaluated under the criteria of 21 U.S.C. 823(a). DEA will conduct this evaluation in the manner described in the rule published at 85 FR 82333 on December 18, 2020, and reflected in DEA regulations at 21 CFR part 1318.
In accordance with 21 CFR 1301.33(a), DEA is providing notice that on November 18, 2021, FPC Group LLC, 1601 South East 1st Street, Lawton, Oklahoma 73501, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substances:
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety & Health Administration (OSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before July 5, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) 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.
Nicole Bouchet by telephone at 202-693-0213, or by email at
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
Two construction standards, “Medical Services and First Aid” (§ 1926.50), and “General Requirements for Storage” (§ 1926.250), contain posting provisions. Paragraph (f) of § 1926.50 requires employers to conspicuously post emergency telephone numbers for physicians, hospitals, or ambulances at their worksites if 911 emergency telephone service is not locally available; in the event that a worker has a serious injury at a worksite, this posting requirement helps expedite emergency medical treatment of the worker. Paragraph (a)(2) of § 1926.250 specifies that employers must post the maximum safe load limits of floors located in storage areas inside buildings or other structures under construction, unless the floors or slabs are on grade (sitting on the ground). This provision prohibits employers from overloading floors in areas used to store material and equipment where a structure's floors are not supported directly by the ground. This requirement is intended to prevent floor collapses which could seriously injure or kill workers. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
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 establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
2.
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 26, 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 26, 2022, it filed with the Postal Regulatory Commission a
On March 30, 2022, MIAX PEARL, LLC (“MIAX Pearl”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
On May 17, 2022, MIAX Pearl withdrew the proposed rule change (SR-PEARL-2022-09).
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 7, 2022, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX Pearl Options Fee Schedule (the “Fee Schedule”) to amend its monthly Trading Permit
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fee Schedule to amend the monthly Trading Permit fees for Members and to no longer provide two monthly credits associated with Trading Permit and non-transaction fees. The proposed changes are designed to update the Exchange's Trading Permit fees to reflect their current value—rather than their value when MIAX Pearl was a new options exchange five years ago—based on the Exchange's ability to deliver value to its customers through technology, liquidity and functionality. Newly-opened exchanges often charge lower fees for certain services such as memberships to attract order flow to an exchange, and later amend their fees to reflect the true value of those services,
A Trading Permit confers the right to transact on the Exchange
The Exchange has two types of Members, Electronic Exchange Members
The Exchange offers three time-in-force modifiers:
The Exchange proposes to amend the Definitions section of the Fee Schedule to delete the definition and remove the credits applicable to the Monthly Volume Credit for Members. The Exchange established the Monthly Volume Credit in 2018
If a Member connects via both the MEO Interface and FIX Interface and qualifies for the Monthly Volume Credit based upon its Priority Customer volume, the greater Monthly Volume Credit shall apply to such Member. Prior to and during periods when this proposal was not in effect, the Monthly Volume Credit was a single, once-per-month credit towards the aggregate monthly total of non-transaction fees assessable to a Member.
The Exchange proposes an amendment to the Definitions section of the Fee Schedule to delete the definition and remove the Monthly Volume Credit. The Exchange established the Monthly Volume Credit when it first launched operations to encourage members to increase their order flow by providing a credit to those that exceeded a volume threshold. The Exchange believes that the Exchange's existing Priority Customer rebates and fees will continue to allow the Exchange to remain highly competitive and continue to attract order flow and maintain market share even without the Monthly Volume Credit.
The Exchange proposes to amend Section 3)b) of the Fee Schedule to remove the Trading Permit fee credit that is denoted in footnote “*” below the Trading Permit fee table. Prior to and during periods when this proposal was not in effect, the Trading Permit fee credit was applicable to Members that connected via both the MEO and FIX Interfaces. Members who connect via both the MEO and FIX Interfaces are assessed the rates for both types of Trading Permits, but these Members received a $100 monthly credit towards the Trading Permit fees applicable to the MEO Interface prior to and during periods when this proposal was not in effect. The Exchange proposes to remove the Trading Permit fee credit and delete footnote “*” from Section 3)b) of the Fee Schedule.
The Exchange established the Trading Permit fee credit when it first launched operations to attract order flow and increase membership by lowering the costs for Members that connect via the MEO Interface and FIX Interface. The Trading Permit fee credit has achieved its purpose and the Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions and membership population on the Exchange.
The Exchange proposes to amend the Fee Schedule to amend the fees for Trading Permits. As a self-regulatory organization, the Exchange's membership department reviews applicants to ensure that each application complies with Exchange
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 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.
The Exchange assesses Trading Permit fees based upon the monthly total volume executed by the Member and its Affiliates on the Exchange across all origin types, not including Excluded Contracts, as compared to the total TCV in all MIAX Pearl-listed options. The Exchange adopted a tier-based fee structure based upon the volume-based tiers detailed in the definition of “Non-Transaction Fees Volume-Based Tiers”
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $250;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $350; and
(iii) if its volume falls within the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $450.
Each Member who connected to the System via the MEO Interface was assessed the following monthly Trading Permit fees:
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $300;
(ii) If its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $400; and
(iii) if its volume falls within the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $500.
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, $500;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, $1,000; and
(iii) if its volume falls within the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, $1,500.
Each Member who connects to the System via the MEO Interface will be assessed the following monthly Trading Permit fees:
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, $2,500;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, $4,000; and
(iii) if its volume falls within the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, $6,000.
As discussed above, both the MEO Interface and FIX Interface are available to all Members and each Member may choose which interface to utilize based on their own business needs. The MEO Interface is primarily used by Market Makers due to its robustness, lower latency, and higher throughput and, as discussed below, utilizes greater Exchange resources due to the increased volume of message traffic that travels through the MEO interface. Trading Permit fees for Members who connect through the MEO Interface are, therefore, higher than the Trading Permit fees for Members who connect through the FIX Interface. The FIX Interface provides lower capacity and bandwidth and, therefore, utilizes less Exchange resources. The FIX Interface is primarily used by order flow providers, who tend to be less latency sensitive and submit less orders and messages than Market Makers.
The Exchange has not amended its Trading Permit fees since the fees were first adopted in 2018.
As
The proposed rule change will be immediately effective. The Exchange initially filed this proposal on July 1, 2021, with the proposed fees being immediately effective.
On March 30, 2022, the Exchange withdrew the proposed rule change that was previously suspended by the Commission on February 18, 2022. After providing Trading Permits at the lower rates for the month of March 2022, on March 30, 2022, the Exchange submitted a revised proposal for effectiveness beginning April 1, 2022.
The Exchange believes that its proposal to amend its Fee Schedule 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.' ”
The Exchange believes that there are many factors that may cause a market participant to decide to become a member of a particular exchange including: (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. As discussed above, 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 and memberships. Within this environment, market participants can freely, and often do, shift their order flow and memberships among the Exchange and competing venues in response to changes in their respective pricing schedules.
The Exchange believes its proposal to remove the Monthly Volume Credit is reasonable, equitable and not unfairly discriminatory because all market participants will no longer be offered the ability to achieve the extra credits associated with the Monthly Volume Credit for submitting Priority Customer volume to the Exchange and access to the Exchange is offered on terms that are not unfairly discriminatory. The Exchange believes it is equitable and not unfairly discriminatory to remove the Monthly Volume Credit from the Fee Schedule for business and competitive reasons. The Exchange established the Monthly Volume Credit when it first launched operations to encourage members to increase their order flow by providing a credit to those that exceeded a volume threshold. The
The Exchange believes its proposal to remove the Trading Permit fee credit for Members that connect via both the MEO Interface and FIX Interface is reasonable, equitable and not unfairly discriminatory because all market participants will no longer be offered the ability to receive the credit and access to the Exchange is offered on terms that are not unfairly discriminatory. The Exchange believes it is equitable and not unfairly discriminatory to remove the Trading Permit fee credit for business and competitive reasons. The Exchange established the Trading Permit fee credit to lower the costs for Members that connect via the MEO Interface and/or FIX Interface as a means to attract order flow and memberships after the Exchange first launched operations. The Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions and membership on the Exchange.
The Exchange believes that there is value in being a Member of the Exchange, retaining that Membership as the Exchange's market share has grown, and that the proposed Trading Permit fees are reasonable because, as illustrated by the above table, they are in the range of similar types of membership fees charged to analogous categories of market participants by other exchanges with similar market share.
The Exchange believes that the proposed monthly Trading Permit fees are not unfairly discriminatory because they would be assessed equally across all Members or firms that seek to become Members. As discussed above, both the MEO Interface and FIX Interface are available to all Members and each Member may choose which interface to utilize based on their own business needs. The MEO Interface is primarily used by Market Makers due to its functionality, robustness, lower latency, and higher throughput and utilizes greater Exchange resources due to the increased volume of message traffic that travel through the MEO interface. Trading Permit fees for Members who connect through the MEO Interface are higher than the Trading Permit fees for Members who connect through the FIX Interface. The FIX Interface provides lower capacity and bandwidth and, therefore, utilizes less Exchange resources. The FIX Interface is primarily used by order flow providers, who tend to be less latency sensitive and submit less orders and messages than Market Makers.
Over the period from April 2021 until September 2021, the Exchange processed 3.15 billion messages via the FIX Interface (0.43% of total messages received). Over that same time period, the Exchange processed 731.4 billion messages (99.57% of total messages received) over the MEO Interface. This marked difference between the number of FIX and MEO messages processed, when mapped to servers, software, storage, and networking results in a much higher allocation of total capital and operational expense to support the MEO Interface. For one, the Exchange incurs greater expense in maintaining the resilience of the MEO Interface to ensure its ongoing operation in accordance with Regulation SCI. Another, the Exchange must purchase and expand its storage capacity to retain these increased messages in compliance with its record keeping obligations. The Exchange's membership application team reviews each new membership application for compliance with Exchange rules. The Exchange must also expend additional resources to surveil and ensure proper regulatory oversight of this increased message traffic. These pulls on Exchange resources have only increased since it first adopted the Trading Permit fee in March of 2018
The Exchange believes that the proposed monthly Trading Permit fees are not unfairly discriminatory because no broker-dealer is required to become a Member of the Exchange. Instead, many market participants awaited the Exchange growing to a certain percentage of market share before they would join as a Member of the Exchange. In addition, many market participants still have not joined the Exchange despite the Exchange's growth in recent years to consistently be approximately 4-5% of the overall equity options market share. To illustrate, the Exchange currently has 41 Members.
The Exchange acknowledges that competitive forces may require certain broker-dealers to be members of all equity options exchanges. However, the Exchange believes that the proposed fees are reasonable, equitably allocated and not unfairly discriminatory, even for a broker-dealer that deems it necessary to join the Exchange for business purposes, as those business reasons should presumably result in revenue capable of covering the proposed fees.
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 above, specific factors include, but are not limited to: (i) An exchange's available liquidity in options series; (ii)
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 the Exchange.
Some other broker-dealers may not deem it necessary to be a Member of the Exchange and may elect to access the Exchange through other means. 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,
In June 2021, the month immediately preceding the initial implementation of this proposed fee change, the Exchange had 20 users of the MEO Interface and 28 users of the FIX Interface. These numbers remained stagnant until August 2021, where one Member that utilized the MEO Interface ceased utilizing the MEO Interface and again in December 2021 where one Member that utilized the FIX Interface ceased utilizing the FIX Interface. Also, the Exchange has not experienced any Member decreasing their trading activity on the Exchange in order to move to a lower tier and be charged the corresponding lower fee. In fact, between June 2021 and July 2021, one Member of the MEO Interface moved up from Tier 1 to Tier 3 due to increasing their trading volume on the Exchange The Exchange has not experienced a net decrease in subscribers due to the fee increase, because the Exchange believes numerous considerations are taken into account when deciding to be a member of an exchange, including, but 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 when socializing the change. Fees are not the sole consideration. As stated above, the Exchange socialized the proposed fee increase with Members prior to first implementing the change. During that process, some Members stated that they anticipated a potential increase due to the lower rates the Exchange historically charged.
Lastly, the Exchange believes the proposed tiered fees provide for an equitable allocation of reasonable dues, fees and other charges because it is similar to other tiered pricing structures on other options exchanges. The Exchange implemented the tiered pricing structure based on the type of interface and trading volume when it first adopted Trading Permit fees in 2018 and the Exchange does not propose to amend the volume requirements associated with each Tier. Rather, the Exchange simply seeks to amend the associated fees. The Exchange proposes to charge users of the FIX Interface monthly fees ranging from $500 to $1,500 based on trading volume. Users of the FIX Interface are primarily EEMs, which generally consist of order flow providers. Cboe charges monthly electronic trading permit fees based on the category of participant, such as $3,000 for Electronic Access Permit holders and $2,000 for Clearing TPH Permit holders (the Exchange notes that it only charges $250 per month for EEM Clearing Firms). Cboe's Electronic Access Permit fee is the analog to the Exchange's Trading Permit fee for Members that use the FIX Interface and is higher than the Exchange's proposed highest tier.
Under the Exchange's tiered structure, a Member may trade approximately 106,000 more contracts on the Exchange than on Cboe BZX Options and continue to qualify for the Exchange's lowest Tier. For example, a Member would qualify for Tier 1 of the Exchange's tiered pricing structure where that Member's total volume as a percentage of TCV is between 0.00% and 0.30%. Assuming an average of 37 million contracts are traded each day during a month, that Member would qualify for Tier 1 where that Member traded less than an ADV of 111,000 contracts and be charged $500 for the month, the same fee as Cboe BZX Options, where that Member connects via FIX.
The proposed Trading Rights Fee compare favorably with those of other options exchanges. The Exchange's proposed monthly Trading Permit Fees for users of the MEO Interface, which are primarily Market Makers, range from $2,500 to $6,000 based on trading volume. Basing such fees on trading volume is analogous to other options exchanges that base their similar fees charged to Market Makers based on the number of options classes traded. For example, NYSE Arca charges Market Makers a base fee of $6,000 and charges additional fees ranging from $1,000 to $5,000 on top of the base fee and depending on the options issues assigned, could result in monthly options trading permit fees ranging from $6,000 to $19,000 (or higher), which is higher than the Exchange's highest proposed tier of $6,000. NYSE American charges electronic Market Makers a base fee of $8,000 and charges additional fees ranging from $500 to $6,000 on top of the base fee and depending on the options issues assigned, which could result in monthly options trading permit fees ranging from $8,000 to $28,500 (or higher), also higher than the Exchange's highest proposed tier of $6,000.
Further, the tiered pricing structure does not raise any new competitive issues as it has been in place since 2018
The proposed fees, therefore, represent the equitable allocation of reasonable dues, fees and other charges because the fees are generally lower than other exchanges and the proposed tiered fees are similar to other tiered pricing structures on other options exchanges.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes the removal of the Monthly Volume Credit and Trading Permit fee credit will not place certain market participants at a relative disadvantage to other market participants because, in order to attract order flow when the Exchange first launched operations, the Exchange established these credits to lower the initial fixed cost for Members. The Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions, including the Exchange's overall membership and the current type and amount of volume executed on the Exchange. The Exchange believes that the Exchange's rebates and fees will still allow the Exchange to remain highly competitive such that the Exchange should continue to attract order flow and maintain market share.
As described above, the Exchange's proposed Trading Permit fees are lower than or similar to the cost of membership and trading permits on other exchanges,
The Exchange also does not believe charging different fees for MEO and FIX Interface users and basing the amount of such fees on trading volume would impose any burden on intermarket or intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As discussed above, the FIX Interface is the uniform industry message protocol used by most exchanges and provides lower throughput and bandwidth than the MEO Interface. Users are free to use either interface based on their business need and the pricing structure is aligned with the interface used, its pull on Exchange resources, and the Member's monthly trading volume. The tiered pricing structure is based on the type of interface and trading volume in place on the Exchange today and the Exchange does not propose to amend the volume requirements associated with each Tier. Rather, it is simply seeking to amend the associated fees. Basing such fees on trading volume would may also stimulate intramarket competition because it is analogous to other exchanges that base like fees on options classes traded or assigned. A Member may cease being a Member if they believe the tiered structure is not appropriate or that another exchange presents a better value. Likewise, a market participant that is not already a Member may cease membership on another exchange or become a Member of MIAX Pearl where they deem the Exchange's Trading Permit fee to be a better value based on its trading activity and business needs.
The Exchange operates in a highly competitive market in which market participants can readily favor one of the 15 competing options venues if they deem fee levels at a particular venue to be excessive. Based on publicly-available information, and excluding index-based options, no single exchange has more than approximately 16% market share. Therefore, no exchange possesses significant pricing power regarding memberships or in the execution of multiply-listed equity and ETF options order flow. Over the course of 2021, the Exchange's market share has fluctuated between approximately 3-6% of the U.S. equity options industry.
The proposed fee change will not impact intermarket competition because it will apply to all Members equally. Also, Members are free to use either the FIX or MEO Interface and may choose the interface that better meets their business needs based on their trading models and behavior. The Exchange operates in a highly competitive market in which market participants can determine whether or not to join the Exchange based on the value received compared to the cost of joining and maintaining membership on the Exchange.
As described above, the Commission initially received SIG Letter 1 on its initial proposal.
The Exchange initially justified this proposal with cost-based justifications to support the proposed fee changes. In the Exchange's prior proposed rule changes, the Exchange determined to utilize a competition based approach to support the proposed fee changes. Because the SIG Letters are primarily focused on the Exchange's prior cost justifications, the Exchange believes SIG's assertions are no longer germane to the current filing as the Exchange no longer utilizes a cost justification to support the proposed fees.
Pursuant to the Guidance, Staff may consider whether a proposed fee is constrained by significant competitive forces in assessing the reasonableness of the proposed fee.
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.
On March 28, 2022, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-NSCC-2022-801 (“Advance Notice”), pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision
NSCC proposes to expand its central counterparty (“CCP”) services to include securities financing transactions (“SFTs”), also referred to generally as securities lending.
As a CCP, NSCC would interpose itself between the securities lender and borrower and become the counterparty to each entity. NSCC would then be obligated to complete the transaction, that is, to return loaned securities to the lender and collateral to the borrower, even if a lender or borrower in an SFT fails to satisfy its obligations, thereby assuming the risk of each entity's failure to perform to each other.
Specifically, NSCC would novate and guarantee SFTs that involve eligible securities, meaning equity securities (including ETFs) cleared at NSCC with a particular per share price, initially set at $5 or greater. The service would be limited to overnight SFTs (
The SFT service would be available to existing NSCC members.
Consistent with its risk management for all other transactions in equity securities, NSCC would collect margin from the lender and borrower for novated SFTs to address the credit risk arising from such transactions. NSCC would also identify potential liquidity exposures if an SFT member were to default and address that potential need in its risk management.
According to NSCC, the proposed SFT clearing service would provide several benefits for market participants, including increased balance sheet netting benefits, capital efficiency opportunities, and mitigation of fire sale risk.
In addition, NSCC believes that the proposal would reduce the potential for market disruption from fire sales for a number of reasons.
NSCC proposes to introduce central clearing for SFTs by establishing rules governing (1) key aspects of the SFTs; (2) SFT participant categories; and (3) SFT risk management, as elaborated below.
When an SFT settles, in general, NSCC would essentially reverse the transaction of the prior day by receiving the underlying SFT securities from the borrower and returning them to the lender, and receiving the cash collateral from the lender and returning it to the borrower. NSCC would also pass through daily interest,
NSCC would maintain a list of the securities that may underlie an SFT that NSCC will accept. Such list would not be a rule but a separate document maintained by NSCC and available to members, consistent with NSCC's practice for equity securities.
Once a lender issues a recall notice, a borrower would be required to satisfy its final settlement obligations by the recall date, which would be the second business day following NSCC's receipt of such notice. If the borrower fails to satisfy its final settlement obligations by the recall date, the lender could go to the market to conduct a buy-in in a commercially reasonable manner,
The proposed SFT clearing service would be available for SFTs entered into between two current NSCC members. In addition, NSCC proposes new categories of membership that are designed to accommodate current bilateral SFT arrangements.
First, the Sponsoring Member/Sponsored Member categories would accommodate principal-style trades, in which a Sponsoring Member acting as principal for its own account completes a Sponsored Member's trades using its own inventory. Typically, in these types of arrangements, a Sponsoring Member can earn a profit from the bid-ask spread differences between its Sponsored Member trades and any offsetting trades.
Second, the Agent Clearing Member category would accommodate transactions by firms who typically conduct trades on an agent basis for their institutional clients. An Agent Clearing Member would arrange a transaction on behalf of an institutional client and charge fees for the services (rather than taking spreads).
According to NSCC, the costs of clearing that may be passed through to the institutional clients, whether as Sponsored Members or as clients to the Agent Clearing Members (“Customers”), by its intermediary would be largely equivalent.
Sponsoring Members would unconditionally guarantee to NSCC the payment and performance of their Sponsored Members' obligations under the Sponsored Member transactions submitted by the Sponsoring Member for novation. Although Sponsored Members are principally liable to NSCC for their own settlement obligations under such transactions in accordance with the proposal, the Sponsoring Member would be required to satisfy those settlement obligations on behalf of a Sponsored Member if the Sponsored Member defaults and fails to perform its settlement obligations. Moreover, Sponsoring Members would be subject to an activity limit based on the perceived volatility of its portfolio as compared to its capital.
A Sponsored Member would only be eligible to submit transactions in which its respective Sponsoring Member is the counterparty (
In addition, Agent Clearing Members would be subject to similar responsibilities as Sponsoring Members. Specifically, an Agent Clearing Member would be responsible for posting to NSCC the required margin for its Customers' activity and covering any default loss allocable to its Customers. Agent Clearing Member transactions would be subject to the same activity limit applicable to Sponsored Member transactions.
An Agent Clearing Member would be fully liable for all obligations of its Customers under the Agent Clearing Member transactions that it submitted to NSCC as the member.
Under the proposal, NSCC would centrally manage risks associated with SFTs in a manner consistent with other transactions in equity securities that NSCC clears.
NSCC would determine an SFT member's required margin independently of the member's other positions, including its equity securities transaction positions outside of the SFTs. NSCC would not net a member's SFT positions with its other positions to determine margin, except for the margin liquidity adjustment charge component. Because NSCC would aggregate all members' margins together as its clearing fund
NSCC would require that a certain portion of its margin be a combination of cash and eligible securities,
For transactions submitted by Sponsoring Members or Agent Clearing Members, NSCC would require that the Sponsoring Members and Agent Clearing Members establish an account or accounts for the margin collected on behalf of Sponsored Members and Customers, respectively. This account would be separate from the Sponsoring Member or Agent Clearing Member's proprietary account. NSCC would determine the required margin for transactions for each Sponsored Member and Customer on a gross basis, that is, separately without netting. The margin obligated for a Sponsoring Member or Agent Clearing Member would be the sum of the individual margin amounts determined for each Sponsored Member and Customer to ensure that the total margin amount represents the sum of each individual institutional client's activity.
In addition, in the event an SFT member defaults, NSCC would have all the rights and obligations of the defaulting party, whether it was the lender or borrower in relation to such default-related SFTs. For example, if a borrower defaults, NSCC would assume all the rights of a lender and the defaulting borrower, and be able to issue a recall notice and conduct a buy-in in a commercially reasonable manner.
To the extent that an SFT default generates a loss larger than the resources that the defaulter has provided to NSCC,
To account for a potentially higher liquidity need as a result of the SFT expansion, NSCC is planning to utilize its current suite of qualifying liquidity resources, including the supplemental liquidity deposit. NSCC may collect supplemental liquidity deposits from members whose default would pose the largest liquidity exposure to NSCC.
Although the Clearing Supervision Act does not specify a standard of review for an Advance Notice, the stated purpose of the Clearing Supervision Act is instructive: To mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for SIFMUs and strengthening the liquidity of SIFMUs.
• To promote robust risk management;
• to promote safety and soundness;
• to reduce systemic risks; and
• to support the stability of the broader financial system.
Section 805(c) provides, in addition, that the Commission's risk management standards may address such areas as risk management and default policies and procedures, among other areas.
The Commission has adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act and Section 17A of the Exchange Act.
The Commission believes that NSCC's proposal to introduce the central clearing of SFTs is consistent with the objectives of reducing systemic risk and supporting the stability of the broader financial system.
As described above in Section II.A., through central clearing, NSCC would be able to reduce each SFT member's counterparty credit risk by becoming a counterparty to all SFTs. Central clearing would also help reduce risk because unlike bilateral transactions involving multiple counterparties, a market participant would be able to transact with one counterparty, subject to uniform and transparent risk management practices and centralized default management, minimizing the
For these reasons, the Commission believes that the proposal should help decrease the operational, credit, and liquidity risk of SFTs relative to those made outside of central clearing through risk management, novation, trade guarantee, and netting. Accordingly, the Commission believes that, through the new SFT clearing service, the proposal would help reduce systemic risks and support the stability of the broader financial system, consistent with Section 805(b) of the Act.
The Commission believes that NSCC's proposal is consistent with the objectives of promoting robust risk management and promoting safety and soundness at NSCC.
As described in Section II.B.(3), NSCC proposes to manage the risks associated with the new SFT central clearing service in a manner consistent with its risk management of other equity securities transactions and provide a centralized method to manage any defaults. First, NSCC would manage its credit risk with respect to SFTs by requiring minimum margin deposits and applying specific aspects of its margin methodology to determine the appropriate margin to cover the risks posed by the SFTs, as well as by applying an additive margin component designed to address any high concentration risk posed by cleared SFTs. When calculating margin, NSCC would not net SFT members' SFT positions with other CNS position, and NSCC also would not net across Sponsored Member accounts or Customer accounts, thereby collecting greater amounts of margin and improving overall resilience of NSCC. NSCC also would specify that a certain portion of margin be in cash and eligible Treasury clearing fund securities to protect against market risk of the collateral. Further, as described in Section II.B.(2), NSCC would apply activity limits to ensure that SFT members' financial resources are sufficient to meet their margin requirements.
Second, as described in Section II.B.(3), NSCC would include an SFT member's potential liquidity exposures as part of NSCC's potential liquidity need. This means that, if a member's SFT activity were to drive NSCC's potential liquidity need, that member would have to provide supplemental liquidity under NSCC's existing rules, to ensure that NSCC would maintain adequate resources to satisfy liquidity needs arising from its SFT settlement obligations.
Third, the proposal would provide a procedure to address SFT member defaults to allow NSCC to take timely action to contain losses and continue to meet its obligations. Specifically, NSCC would have a right to close out a defaulting member's positions, assume the rights of the non-defaulting party in relation to such default-related SFTs, and apply its loss allocation procedure if the defaulting member's resources are insufficient to cover a loss. The loss allocation procedure would provide an orderly application of funds to absorb any loss.
For the foregoing reasons, the Commission believes that the proposal would promote robust risk management and safety and soundness at NSCC,
Rule 17Ad-22(e)(6)(i) under the Exchange Act requires that NSCC establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, considers, and produces margin levels commensurate with, the risks and particular attributes of each relevant product, portfolio, and market.
As described above in Section II.B.(3)(i), NSCC proposes to establish margin requirements to cover its credit exposures to the SFT members. First, NSCC proposes to collect margin from SFT members, including the application of both a minimum margin amount and of NSCC's existing margin system that contains multiple component charges designed to cover various types of risk and meet applicable regulatory requirements.
Because NSCC applies its risk-based margin methodology, tailored to address SFTs, the Commission believes that the proposal is reasonably designed to cover NSCC's credit exposures from SFT members and consistent with Rules 17Ad-22(e)(6)(i).
Rule 17Ad-22(e)(7)(i) under the Exchange Act requires that NSCC establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively measure, monitor, and manage the liquidity risk that arises in or is borne by the covered clearing agency, including measuring, monitoring, and managing its settlement and funding flows on an ongoing and timely basis, and its use of intraday liquidity by, at a minimum maintaining sufficient liquid resources at the minimum in all
As described above in Section II.B.(3)(ii), when calculating its liquidity need, in addition to liquidity exposures relating to other equity positions, NSCC would include all the differences in market value of the underlying securities owed by a defaulting SFT member in the event an SFT member defaults, as well as all novated open SFT transactions of a defaulting SFT. This determination of the liquidity need is designed to ensure that NSCC would cover any liquidity need associated with its final settlement obligations to non-defaulting SFT members and members. NSCC currently relies on various liquidity resources, all of which would be available in the event of a liquidity shortfall relating to SFTs. The Commission believes that NSCC's existing liquidity risk management framework, including NSCC's ability to collect supplemental liquidity if a member's activity, including its SFT activity, increases NSCC's liquidity need,
The Commission believes that NSCC's proposal to manage its potential liquidity exposures associated with SFTs by using its established liquidity resources is reasonably designed to manage the liquidity risk that may arise in the SFT central clearing service, and consistent with Rule 17Ad-22(e)(7)(i).
Rule 17Ad-22(e)(18) under the Exchange Act requires that NSCC establish, implement, maintain and enforce written policies and procedures reasonably designed to establish objective, risk-based, and publicly disclosed criteria for participation, which permit fair and open access by direct and, where relevant, indirect participants and other financial market utilities, require participants to have sufficient financial resources and robust operational capacity to meet obligations arising from participation in the clearing agency, and monitor compliance with participation requirements on an ongoing basis.
First, the Commission believes that the proposal is reasonably designed to establish objective, risk-based, and publicly-disclosed criteria for SFT members. As described above, all members would be eligible to apply to become Sponsoring Members or Agent Clearing Members subject to such criteria, similar to how NSCC currently provides membership criteria for its members. For example, if a Sponsoring or Agent Clearing Member applicant is a registered broker-dealer, it would be subject to particular financial resource requirements, as specified in the proposed rule. Only a qualified institutional buyer or a legal entity that satisfies the financial requirements necessary to be a qualified institutional buyer would be eligible to be a Sponsored Member. In addition, an applicant must provide adequate assurances for its financial responsibility and operational capability.
Second, the proposal is reasonably designed to allow direct and indirect participants to access the new SFT central clearing service by establishing new membership categories to allow for such access by particular types of market participants. For example, a participant who cannot or does not want to meet the requirements to become either a member, a Sponsoring Member, or an Agent Clearing Member can participate as a Sponsored Member or as a Customer, the latter of which does not have a direct relationship with NSCC.
Third, the proposal is reasonably designed to allow NSCC to monitor compliance with participation requirements on an ongoing basis. The proposal would require an SFT member to notify NSCC if it is no longer in compliance with applicable requirements to be an SFT member, and allow NSCC to inspect SFT members' financial resources and operational capability on an ongoing basis.
For the foregoing reasons, the Commission believes that the proposal is consistent with Rule 17Ad-22(e)(18).
Rule 17Ad-22(e)(19) under the Exchange Act requires a covered clearing agency to establish, implement, maintain, and enforce written policies and procedures reasonably designed to identify, monitor, and manage the material risks to the covered clearing agency arising from arrangements in which firms that are indirect participants in the covered clearing agency rely on the services provided by direct participants to access the covered clearing agency's payment, clearing, or settlement facilities.
The proposal allows Sponsoring Members to submit Sponsored Members' transactions to NSCC, and Agent Clearing Members to submit its Customers' transactions to NSCC. In both cases, Sponsoring Members and Agent Clearing Members would be ultimately responsible to NSCC for Sponsored Members' and Customers' transactions and liable to satisfy all settlement obligations. Both Sponsoring Members and Agent Clearing Members serve as the processing agent for all the Sponsored Member and Customer transactions responsible for posting margin and satisfying any losses arising from the client transactions. Sponsoring Members and Customers do not have any direct mechanism to submit their own margin or settle transactions directly with NSCC. Moreover, even though Sponsored Members would be principally liable for their own settlement obligations, Sponsoring Members' guaranty requires Sponsoring Members to satisfy settlement obligations on behalf of its Sponsored Members.
By calculating and collecting margins for Sponsored Members' and Customers' transactions and providing certainty that Sponsoring Members and Agent Clearing Members would be responsible for their Sponsored Members' and Customers' transactions, the Commission believes that the proposal
Rule 17Ad-22(e)(21) under the Exchange Act requires a covered clearing agency to establish, implement, maintain, and enforce written policies and procedures reasonably designed to be efficient and effective in meeting the requirements of its participants and the markets it serves, including the clearing agency's clearing and settlement arrangements and the scope of products cleared or settled.
As described above in Section II.B.(1) and (2), the proposal is designed to reflect the current structure of the bilateral securities lending market, ensuring that relevant features and market participants subject to differing regulatory requirements and existing contractual relationships can be accommodated as part of the service provided by NSCC. For example, the proposal would allow for central clearing of SFTs with a one business day term, in order to provide a scheduled settlement date so that the transaction may be eligible for balance sheet netting benefit as explained in Section II.(B)(1). Second, the proposal would allow accelerated settlement so that certain market participants are able to quickly unwind their SFTs to satisfy applicable regulatory requirements. Third, the proposed membership categories would accommodate principal and agency trading to allow different types of market participants to enter into the new SFT central clearing service, consistent with their business models and applicable regulatory requirements.
Accordingly, the Commission believes that the proposal is reasonably designed to be efficient and effective in meeting the requirements of its participants and the market it serves, and consistent with Rule 17Ad-22(e)(21).
By the Commission.
On February 7, 2022, the Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-OCC-2022-002 (“Proposed Rule Change”) pursuant to Section 19(b) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Proposed Rule Change would amend Sections 6A and 12 of Article III of the By-Laws, the Fitness Standards adopted by the Board thereunder,
OCC proposes to amend the Charters to delegate authority from the Board to the Committees to review and approve certain routine initiatives and policies. In addition, OCC proposes to amend its
Currently, the Charters delegate to the Committees the review of many routine initiatives or policies, but not usually the approval. Regulatory filings generally require approval by the full Board.
The Proposed Rule Change would delegate to the Committees authority for the review and approval of certain initiatives and policies, as well as approval of proposed rule changes for matters within the scope of authority of each Committee. Specifically, OCC proposes to amend the Charters to delegate authority to the Committees to review and approve the following initiatives and policies that currently require Board approval:
For matters that are within the scope of the Committee's responsibilities, each Committee generally would have the authority to amend OCC policies filed with the Commission as rules pursuant to the Exchange Act.
OCC also proposes to allow the Board to delegate authority to an OCC officer to make certain regulatory filings. OCC believes that such delegated authority would help OCC to more efficiently revise its rules to improve their clarity and ensure their consistency.
OCC proposes to amend Article XI of the By-Laws to remove the provision that allows OCC to treat an Exchange Director's vote as the consent of the stockholder who elected the Exchange Director for those amendments to the By-Laws that require stockholder consent. According to OCC, the provision codified a long-standing understanding between OCC and the stockholders to consider the affirmative vote of each Exchange Director as the approval of the stockholder.
The Proposed Rule Change would make other amendments to the Charters arising from the annual review of OCC's governance arrangements. These proposed amendments are intended to increase consistency across OCC's governance arrangements and to make other conforming changes to improve their clarity and transparency. These changes are described and broadly categorized below.
The Proposed Rule Change would amend the Board Charter to provide for a minimum of four meetings per year, rather than five. This change would align the Board Charter with the Committee Charters, which generally require at least four meetings each year. The Proposed Rule Change would also modify the attendance guidelines to provide that attendance telephonically or by videoconference for meetings scheduled for in-person attendance is discouraged. This change conforms with the current Director Code of Conduct and would be applied to each of the Committee Charters.
The Proposed Rule Change would also amend the discussion of the Board's mission to more accurately reflect that OCC's services to the industry are not limited to clearance and settlement.
The Proposed Rule Change would also revise the description of the Conflict of Interest Policy within the Board Charter. The current Conflict of Interest Policy does not define “conflict of interest,” but rather refers variously throughout the policy to different types of conflicts, including potential conflicts and apparent conflicts, which are referred to as those that may “be reasonably perceived by others to raise questions about potential conflicts of interest.” OCC would streamline the policy by defining “conflict of interest” as “actual, potential or apparent conflicts of interest” and referring to the new defined term “conflict of interest” throughout the policy instead of identifying specific types of conflicts (
OCC is also proposing to update the cadence of certain AC reviews to reflect that the AC shall conduct such reviews at each regular meeting of the AC.
OCC would amend the CPC Charter by removing gendered pronouns that assume the Chairman and Chief Executive Officer necessarily will be individuals who identify as male. Similar changes would be applied to the Board Charter and AC Charter. The Proposed Rule Change would also provide for CPC oversight of OCC's succession planning for “critical roles,” in alignment with terminology in OCC's policies and procedures that address succession planning. In addition, references to the “Corporate Plan” would be replaced with references to the “corporate performance report,” which better describes the initiative by which the CPC assesses OCC's performance against its corporate goals.
OCC would amend the RC Charter by changing the minimum number of meetings from six to four to align with the other Committee Charters, which generally require at least four meetings each year.
The Proposed Rule Change also includes administrative changes designed to enhance the clarity and conciseness of the Charters. For the Board Charter, OCC is proposing the following:
• Under the “Mission of the Board” heading, in the tenth bulleted item describing the Board's oversight role, removing “such officer” from “approving the compensation of each such officer” so that the bullet would state “[o]verseeing the development and design of employee compensation, incentive, and benefit programs and evaluating the performance of any Executive Chairman, the Chief Executive Officer, and the Chief Operating Officer and approving the compensation of each”;
• under the “Board Issues” heading and “Membership” subheading: In the first paragraph of the “Selection of Member Directs and Public Directors” section, removing “in order” in “retain a search firm in order to assist [the GNC] in these efforts”;
• in the second paragraph of the same section, replacing “such annual meeting” with “the annual meeting,” deleting “as in effect from time to time” from “the Director Nomination Procedure as in effect from time to time,” and deleting the introductory clause beginning the sentence, “With respect to Member Directors”;
• in the “Member Directors Changing Their Employment” paragraph of the “Retirement” section, deleting “with respect thereto” and “requirements of the” in “the [GNC] . . . shall recommend to the Board any action to be taken with respect thereto, consistent with the requirements of the By-Laws concerning the continued eligibility of such person to remain a Member Director;”
• under the “Board Issues” heading and “Conduct” subheading, the second paragraph of “Distribution of Materials; Board Presentations” in the “Board Meetings” section, replacing “summaries/slides of presentations” with “materials”; and
• under the “Management Structure, Evaluation and Succession” heading and “Management Structure” section, deleting “what is in” in the phrase “the specific needs of the business and what is in the best interest of OCC and the market participants it serves.”
OCC is also proposing certain administrative changes designed to enhance the clarity, conciseness, and consistency of the AC Charter. Specifically, OCC is proposing the following:
• Changing the reference to the AC's review of the “Compliance Policy” to the “Compliance Risk Policy” to align with the current title of that policy;
• modifying reference to the General Counsel to reflect that the General Counsel is OCC's Chief Legal Officer;
• clarifying that, in the section addressing competencies of AC members, “working familiarity with basic finance and accounting practices” means “financial literacy”;
• under the “Membership and Organization” section, (i) in the first paragraph of the “Composition” section, abbreviating “Board of Directors” and removing extraneous references to the “full” Board and “full Committee membership,” and (ii) in the first paragraph of the “Meetings” section, replacing “The Committee will” with “The Committee shall” for consistency with the language of similar requirements; and
• under the “Functions and Responsibilities” section, in the ninth bulleted item concerning the AC's functions and responsibilities in discharging is oversight role, replacing “at least once in a calendar year” with “at least once every calendar year.”
For the CPC Charter, OCC is proposing the following:
• In the “Membership and Organization” section, (i) in the first paragraph of the “Composition” section, replacing “The Committee shall consist of” with “The Committee shall be comprised of”; and (ii) in the first paragraph of the “Meetings” section, replacing “The Committee will” with “The Committee shall” and deleting “is” in the phrase “as is necessary”;
• in the “Authority” section and “Scope” subsection, correcting a reference to “employees of the OCC,” which should be “employees of OCC;”
• for the bulleted items discussing the CPC's functions and responsibilities in discharging its oversight role in the “Functions and Responsibilities” section: In the fifth bulleted item, deleting the phrase “with respect thereto”; in the eighth bulleted item replacing “For each calendar year” with “Each calendar year”; and fifteenth bulleted item, replacing “every two years” with “every two calendar years.”
For the GNC Charter, OCC is proposing the following:
• Under the “Membership and Organization” section, in the first paragraph of the “Composition” section, (i) replacing “The Committee will be composed” with “The Committee shall be comprised,” (ii) inserting “at least” before the required number of Exchange Director and Member Director membership on the GNC, and (iii) replacing “The Committee Chair will be designated by the Board from among the Public Director Committee members” with “The Chair shall be a Public Director”; and
• for the bulleted items discussing the GNC's functions and responsibilities in discharging its oversight role in the “Functions and Responsibilities” section: In the eleventh bulleted item, replacing “For each calendar year” with “Each calendar year”; and in the thirteenth bulleted item, replacing “the manner in which” with “how.”
OCC also proposes certain administrative changes to the RC Charter, including (i) to specify that the RC recommends changes to OCC's Recovery and Orderly Wind-Down Plan “for approval,” consistent with language used with respect to policies for which the Board has retained approval authority with respect to amendments; and (ii) to replace “examinations” with “audits” in the description of the RC's oversight of internal or external audits of OCC's financial, collateral, risk model and third party risk management processes, consistent with the use of the term “audit” elsewhere in that description.
The proposed changes also include a few administrative changes designed to enhance the clarity and concision in the TC Charter. These minor administrative changes remove unnecessary verbiage or otherwise modify the verbiage in certain provisions.
The Proposed Rule Change would amend the Board Charter by clarifying that the Board has delegated to Committees the “oversight” of specific risks, not the “management” of those risks. OCC believes that this proposed change better aligns the Board Charter with the Committee Charters and better distinguishes responsibilities of the Board, Committees, and management.
The AC assists the Board in overseeing OCC's financial reporting process, OCC's system of internal control, OCC's auditing process, OCC's process for monitoring compliance with applicable laws and regulation, and OCC's compliance and legal risks.
The Board established the CPC to assist in overseeing general business, regulatory capital, investment, corporate planning, and compensation and human capital risks, as well as executive management succession planning and performance assessment.
The Board established the GNC to assist the Board in overseeing OCC's corporate governance processes, including assessing the clarity and transparency of OCC's governance arrangements, establishing the qualifications necessary for Board service to ensure that the Board is able to discharge its duties and responsibilities, identifying and recommending to the Board candidates eligible for service as Public Directors and Member Directors, and resolving certain conflicts of interests.
The Board established the RC to assist the Board in overseeing OCC's financial, collateral, risk model and third-party risk management processes, among other responsibilities.
The Board established the TC to assist the Board in overseeing OCC's information technology (“IT”) strategy and other company-wide operational capabilities.
The Proposed Rule Change would amend provisions governing the composition of the Board and the RC to reflect OCC's belief that strong and transparent governance with robust member input on relevant risk issues is necessary to provide effective risk management, consistent with OCC's current practice. Changes to the Board Charter and RC Charter would codify that one of the factors OCC considers when nominating Directors to the Board and RC is to obtain input from a broad array of market participants on risk management issues. OCC believes that this amendment would align the Board Charter and RC Charter with the By-Laws, which require significant Clearing Member representation on the Board.
Section 19(b)(2)(C) of the Exchange 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 Exchange Act and the rules and regulations thereunder applicable to such organization.
Section 17A(b)(3)(F) of the Exchange Act requires, among other things, that a clearing agency's rules are designed to promote the prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions; and the rules are designed, in general, to protect investors and the public interest.
The Commission believes that OCC's proposed changes to codify its practice of nominating Public Directors who are unaffiliated with DCMs and FCMs are consistent with Section 17A(b)(3)(F). This amendment would likely preserve OCC's ability to enhance diversity of representation on the Board and aid the Board in exercising its oversight of OCC's clearance and settlement functions to ensure that they are not just prompt and accurate, but are also structured to protect investors and promote the public interest. The Commission believes that the changes to OCC's governing documents to facilitate inclusion of the perspectives provided by non-DCM- and non-FCM-affiliated Public Directors should support the protection of the public interest because such Public Directors are not affiliated with and therefore should not have conflicts obligating them to represent the views of any DCM or FCM, in addition to any national securities exchange, securities association, broker, or dealer.
In response to the Notice of Filing,
OCC's proposed changes to establish a framework for delegated authority are also consistent with Section 17A(b)(3)(F). The Commission believes that the Proposed Rule Change would establish a clear and transparent framework for the delegation of authority from the Board to Committees and to officers to approve changes to certain rules. Such a framework would facilitate the efficient maintenance and administration of OCC's rules because it would allow the Board to delegate the approval of routine regulatory changes to Committees or officers, which would in turn leverage the specialized experience of the Committees or officers and expedite review and approval of routine matters. Facilitating the efficient maintenance and administration of OCC's rules would help to ensure that such rules promote the prompt and accurate clearance and settlement of securities transactions because the routine rule changes would not need to wait for Board approval. This would allow OCC to file such rule changes with the Commission more quickly and ensure that amendments to the clearance and settlement process are enacted promptly.
The commenter opposing the proposal argues that the Proposed Rule Change would “concentrate power and risk while reducing checks and balances” by, in part, increasing executive control while reducing Board control.
The Commission further believes the proposed change to Article XI of OCC's By-Laws is consistent with Section 17A(b)(3)(F). Crucially, the Proposed Rule Change does not change the existing Article XI requirement that certain By-Law amendments cannot occur through the action of the Board without the approval of all of the stockholders. The proposed amendment to remove the language attributing an Exchange Director's vote to constitute stockholder consent is a reasonable step given OCC's current practice of obtaining written stockholder consents for all By-Law amendments that require them. The separation of the roles of individuals serving as both Board members and stockholder representatives would, in general, protect investors and the public interest.
Additionally, the Commission believes that the other housekeeping amendments to the Charters arising from the annual review of OCC's governance arrangements are consistent with Section 17A(b)(3)(F). As described above, many of the housekeeping amendments would resolve small inconsistencies within and across OCC's rules. The proposed changes would also more clearly define the responsibilities of the Board and Committees as well as codify that OCC's Board seeks to obtain input from a broad array of market participants on risk management issues. These housekeeping amendments to the Board and Committee Charters would, in general, protect investors and the public interest.
The Commission believes, therefore, that the proposal to (i) clarify that OCC's Public Directors may not be affiliated with any DCM or FCM; (ii) allow the Board to delegate authority to various Committees and officers to review and approve routine initiatives and policies and authorize certain regulatory filings; (iii) remove the portion of Article XI,
Rule 17Ad-22(e)(2) under the Exchange Act requires that a covered clearing agency establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for governance arrangements that, among other things, are clear and transparent, support the public interest requirements in Section 17A of the Exchange Act applicable to clearing agencies and the objectives of owners and participants, specify clear and direct lines of responsibility, and consider the interests of participants' customers, securities issues and holders, and other relevant stakeholders of the covered clearing agency.
The Commission believes the proposed changes to nominate Public Directors who are unaffiliated with DCMs and FCMs are consistent with Rule 17Ad-22(e)(2)(vi). The changes serve to enhance the diversity of the Board by requiring that OCC look beyond parties affiliated with exchanges, associations, and other such market participants when appointing Public Directors. This improved representation would in turn enable the Board to better consider the interests of participants' customers, securities issues and holders, and other relevant stakeholders of the covered clearing agency.
OCC's proposed changes to delegate authority are consistent with Rule 17Ad-22(e)(2)(v). The Commission believes that by delegating approval of certain regulatory changes to Committees, the authority to review and approve certain initiatives and policies or to direct certain regulatory filings would reside with the Committee that has oversight authority over the relevant subject matter for such initiatives, policies, and proposed changes. Such delegations would allocate the limited time and attention of the Board more efficiently. The proposed changes to delegate authority aid in specifying clear and direct lines of responsibility.
The Commission believes the proposed change to Article XI is consistent with Rule 17Ad-22(e)(2)(iii). By removing the provision that allows OCC to treat an Exchange Director's vote as the consent of the stockholder who elected the Exchange Director for those amendments to the By-Laws that require stockholder consent, the proposed change would resolve an Exchange Director's potential conflict of interest of acting with fiduciary duty as a director while also having a fiduciary duty to the stockholder. Given that OCC retains the requirement in Article XI for all stockholders to approve amendments to certain portions of the By-Laws, the proposed provision removal would not result in any negative impacts to the stockholder. Instead, the separation of the Exchange Director's roles as Board members and stockholder representatives would better support the public interest requirements of Section 17A.
Moreover, the Commission believes that all of the proposed housekeeping changes to the Charters are consistent with specific subsections of Rule 17Ad-22(e)(2) as described below.
Rule 17Ad-22(e)(2)(i) requires that a covered clearing agency establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for governance arrangements that are clear and transparent.
The commenter opposing the proposal argues that the Proposed Rule Change would “concentrate power and risk while reducing checks and balances” by, in part, reducing meeting frequency.
Rule 17A-22(e)(2)(v) requires that a covered clearing agency establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for governance arrangements that specify clear and direct lines of responsibility.
Finally, Rule 17Ad-22(e)(2)(vi) requires that a covered clearing agency establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for governance arrangements that consider the interests of participants' customers, securities issues and holders, and other relevant stakeholders of the covered clearing agency.
The Commission believes, therefore, that the proposal to (i) clarify that OCC's Public Directors may not be affiliated with any DCM or FCM; (ii) allow the Board to delegate authority to various Committees and officers to review and approve routine initiatives and policies and authorize certain regulatory filings; (iii) remove the portion of Article XI, Section 1 of the By-Laws; and (iv) apply additional housekeeping amendments is consistent with the requirements of Rule 17Ad-22(e)(2)(i), (iii), (v), and (vi) under the Exchange Act.
On the basis of the foregoing, the Commission finds that the Proposed Rule Change is consistent with the requirements of the Exchange Act, and in particular, the requirements of Section 17A of the Exchange Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes, in connection with a companion filing to adopt investigation, disciplinary, sanction, and other procedural rules modeled on the rules of its affiliates, to (1) adopt new Rules 10.9216(b) and 10.9217 governing minor rule violations and fines; (2) add additional rules to the Exchange's list of current minor rule violations that would be transposed to proposed Rule 10.9217; and (3) move the Recommended Fine Schedule for minor rule violations from the Fee Schedule to proposed Rule 10.9217 and make certain amendments and corrections. The proposed change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
In connection with a companion filing to adopt investigation, disciplinary, sanction, and other procedural rules modeled on the rules of its affiliates,
Beginning in 2013, each of the Exchange's affiliates have adopted rules relating to investigation, discipline, sanction, and other procedural rules based on the rules of the Financial Industry Regulatory Authority (“FINRA”).
In 2011, the Exchange increased the maximum fine pursuant to the MRVP from $2,500 to $5,000 and also increased the recommended fines from $100/$500/$1,000 for 1st, 2nd and 3rd tier fines, respectively, to $250/$750/$1,500. The Exchange also recommended fines of $500/$1,000/$2,500 for other, more serious trading rule violations (
Under current Article 12, Rule 8, in lieu of commencing a “disciplinary proceeding” as that term is used in Article 12 of the Exchange Rules, the Exchange may, subject to the requirements set forth in this Rule, impose a censure or fine, not to exceed
Any censure or fine imposed pursuant to Article 12, Rule 8 and not contested shall not be publicly reported, except as may be required by Rule 19d-1 under the Exchange Act, and as may be required by any other regulatory authority. Any censure or fine that is contested may be publicly reported to the same extent that Exchange disciplinary proceedings may be publicly reported. Any fine imposed pursuant to Article 12, Rule 8 that (1) does not exceed $2,500 and (2) is not contested, shall be reported by the Exchange to the Securities and Exchange Commission (the “Commission”) on a periodic, rather than a current, basis, except as may otherwise be required by Exchange Act Rule 19d-1 and by any other regulatory authority. Under Article 12, Rule 8(b), the Chief Enforcement Counsel or Chief Regulatory Officer (“CRO”) have the authority to impose a fine pursuant to the rule.
Under Article 12, Rule 8(c), in any action taken by the Exchange pursuant to the rule, the person against whom a censure or fine is imposed shall be served as provided in Article 12, Rule 1(c) with a written statement, signed by an Exchange officer setting forth (1) the rule(s) or policy(ies) alleged to have been violated; (2) the act or omission constituting each violation; (3) the sanctions imposed for each violation; (4) the date on which such action is taken; and (5) the date on which such determination becomes final and such fine, if any, becomes due and payable to the Exchange, or on which such action must be contested as provided in paragraph (e) of Article 12, Rule 8, such date to be not less than 15 days after the date of service of the written statement. Pursuant to Article 12, Rule 8(d), if the person fined pursuant to the rule pays the fine, such payment is deemed a waiver of any right to a disciplinary proceeding under Article 12 and any right to review or appeal. Commentary .01 to Article 12, Rule 8 provides that, with respect to subsection (d), a failure to pay a fine imposed Article 12, Rule 8 by the time it is due, without timely contesting the action upon which such fine was based pursuant to Article 12, Rule 8(e), shall be deemed a waiver by the person against whom the fine is imposed of such person's right to a disciplinary proceeding under Article 12 and any right to review or appeal.
Under Article 12, Rule 8(e), any person censured or fined pursuant to the rule may contest such censure or fine by filing with the Secretary a written response meeting the requirements of an Answer as provided in Article 12, Rule 4(b) no later than the date by which such determination must be contested. The Secretary may deny the answer if such answer is untimely or the answer fails to meet the standards of Article 12, Rule 4(b). If the Secretary denies the answer without leave to amend and refile, the sanction imposed by the Exchange pursuant to Article 12, Rule 8(b) shall become final and the censure shall be imposed and/or fine become due and payable. Unless denied by the Secretary, an answer filed by respondent is deemed accepted, at which point the matter shall become a “Disciplinary Proceeding” subject to the provisions of Article 12 applicable to disciplinary proceedings.
Pursuant to Article 12, Rule 8(f), the Exchange must prepare and announce to its Participants from time to time a listing of the Exchange rules and policies as to which the Exchange may impose censures or fines as provided in this Rule that must also indicate the specific or recommended dollar amount that may be imposed as a fine hereunder with respect to any violation of such rule or policy, or may indicate the minimum and maximum dollar amount that may be imposed by the Exchange with respect to any such violation. In applying the current Recommended Fine Schedule set forth in the Fee Schedule, the Exchange considers a violation as having occurred at the time that the underlying conduct of the Participant occurred. Nothing in Article 12, Rule 8 requires the Exchange to impose a censure or fine pursuant to the Rule with respect to the violation of any rule or policy included in any such listing and the Exchange shall be free, whenever it determines that any violation is not minor in nature, to proceed under other provisions of Article 12 rather than under Rule 8. Under Article 12, Rule 8(g), any fine assessed under Rule 8 cannot be deemed to satisfy any damages or liability incurred from the violation.
Article 12, Rule 8(h) sets forth the Exchange rules and policies that are subject to the MRVP.
The Exchange proposes to adopt new Rules 10.9216(b) and 10.9217 based on NYSE Arca Rules 10.9216(b) and 10.9217. The Exchange would retain the text of the Exchange's currently applicable list of minor rule violations in proposed Rule 10.9217 and make certain corrections and additions, as described below. In addition, the Exchange would move the Recommended Fine Schedule for minor rule violations from the Fee Schedule to proposed Rule 10.9217 and make certain amendments and corrections. The Exchange proposes to add Rules 10.9216(b) and 10.9217 to Rule 10 governing disciplinary proceedings, other hearings and appeals that will house the proposed Rule 10.8000 and 10.9000 Series based on the text of the NYSE Arca Rule 10.8000 and Rule 10.9000 Series that is the subject of the Exchange's companion immediately effective filing.
Subsection (b) of proposed Rule 10.9216 (Acceptance, Waiver, and Consent; Procedure for Imposition of Fines for Minor Violation(s) of Rules) would set forth the procedure for the imposition of fine for minor rule violations under the Exchange's new disciplinary rules based on NYSE Arca Rule 10.9216(b).
Proposed Rule 10.9216(b)(2)(A)(i) would provide that if a Participant, Participant Firm or covered person submits an executed minor rule violation letter, the submission of such a letter by the Participant, Participant Firm or covered person also waives any right to claim bias or prejudgment of the CRO, the Board, Counsel to the Board, or any Director, in connection with such person's or body's participation in discussions regarding the terms and conditions of the minor rule violation letter or other consideration of the minor rule violation letter, including acceptance or rejection of such minor rule violation letter.
Proposed Rule 10.9216(b)(2)(A)(ii) would provide that if a Participant, Participant Firm or covered person submits an executed minor rule violation letter, by the submission such Participant, Participant Firm or covered person also waives any right to claim that a person violated the ex parte prohibitions of proposed Rule 10.9143 or the separation of functions prohibitions of proposed Rule 10.9144, in connection with such person's or body's participation in discussions regarding the terms and conditions of the minor rule violation letter or other consideration of the minor rule violation letter, including acceptance or rejection of such minor rule violation letter.
Proposed Rule 10.9216(b)(2)(B) would provide that if a minor rule violation letter is rejected, the Participant, Participant Firm or covered person would be bound by the waivers made under proposed paragraphs (b)(1) and (b)(2)(A) for conduct by persons or bodies occurring during the period beginning on the date the minor rule violation letter was executed and submitted and ending upon the rejection of the minor rule violation letter.
Proposed Rule 10.9216(b)(3) would provide that if the Participant, Participant Firm or covered person executes the minor rule violation letter, it would be submitted to the CRO. The CRO, on behalf of the SRO Board, may accept or reject such letter.
Proposed Rule 10.9216(b)(4) would provide that if the letter is accepted by the CRO, it would be deemed final and that any fine imposed pursuant to the proposed Rule and not contested would not be publicly reported, except as may be required by Rule 19d-61 under the Act, and as may be required by any other regulatory authority.
Proposed Rule 10.9216(b)(4) would further provide that if the letter is rejected by the CRO, the Exchange may take any other appropriate disciplinary action with respect to the alleged violation or violations. Subsection (b)(4) would also provide that if the letter is rejected, the Participant, Participant Firm or covered person would not be prejudiced by the execution of the minor rule violation letter under proposed paragraph (b)(1) and that the letter may not be introduced into evidence in connection with the determination of the issues set forth in any complaint or in any other proceeding.
As noted above, proposed Rule 10.9216(b) is substantially the same as NYSE Arca Rule 10.9216(b).
The Exchange also proposes to adopt Rule 10.9217 based on NYSE Arca Rule 10.9217, which would be titled “Violations Appropriate for Disposition Under Rule 10.9216(b)”.
Proposed Rule 10.9217(a) would provide that any Participant, Participant Firm or covered person may be subject to a fine, not to exceed $5,000,
Proposed Rule 10.9217(b) would provide that Regulatory Staff designated by the Exchange would have the authority to impose a fine pursuant to the proposed Rule.
Proposed Rule 10.9217(c) would provide that any person or organization found in violation of a minor rule would not be required to report such violation on SEC Form BD or Form U-4 if the sanction imposed consists of a fine not exceeding $2,500 and the sanctioned person or organization has not sought an adjudication, including a hearing, or otherwise exhausted the administrative remedies available with respect to the matter. Subsection (c) would further provide that any fine imposed in excess of $2,500 would be subject to current rather than quarterly reporting to the Commission pursuant to Rule 19d-1 under the Act.
Proposed Rule 10.9217(d) would provide that nothing in the proposed Rule would require the Exchange to impose a fine for a violation of any rule under this Minor Rule Plan and that if the Exchange determines that any violation is not minor in nature, the
The next section would be titled “List of Rule Violations and Fines Applicable Thereto” and would provide that any Participant, Participant Firm or covered person may be subject to a fine under proposed Rule 10.9216(b) with respect to any rules listed below.
Proposed Rule 10.9217(e) would be titled “Exchange Rules and Policies subject to a Minor Rule Violation” and would set forth the list of rules under which a Participant, Participant Firm or covered person may be subject to a fine under a minor rule violation letter as described in proposed Rule 10.9216(b). The Exchange would retain the list of rules currently set forth in Article 12, Rule 8(h) under the existing headings for “Reporting and Record Retention Violations” and “Minor Trading Rule Violations” with the following additions and changes.
First, the Exchange would add subsection (b) of Article 6, Rule 2 (Registration and Approval of Participant Personnel) to proposed Rule 10.9217(e)(13).
Article 6, Rule 2 currently sets forth certain employee registration, approval and other exchange requirements. Specifically, Article 6, Rule 2(a) governs registration of representatives, as defined in Article 6, Rule 14(b)(1), with the Exchange and is currently eligible for a minor rule fine under Article 12, Rule 8(h). Article 6, Rule 2(b) provides for the registration of principals, as defined in Article 6, Rule 14(a)(1). The Exchange proposes that the registration requirements of principals set forth in Article 6, Rule 2(b) be eligible for a minor rule fine. The proposed change would be consistent with the practice on the Exchange's affiliates whose comparable rule requiring the registration of principals is eligible for a minor rule fine.
Second, the Exchange would add subsections (a) and (b) of Article 6, Rule 5 (Supervision of Representatives and Branch and Resident Offices) to proposed Rule 10.9217(e)(14). As discussed below, the Exchange's current minor rule incorrectly references Article 6, Rule 5(b) for violations relating to written supervisory procedures. The correct reference should be to Article 6, Rule 5(c), which the Exchange proposes to retain as proposed Rule 10.9217(e)(15).
Article 6, Rule 5(a) (Adherence to Law) provides that no Participant shall engage in conduct in violation of the Act, as amended, rules or regulations thereunder, the Bylaws or the Rules of the Exchange, or any written interpretation thereof and that every Participant is responsible for reasonably supervising its associated persons to prevent such violations. The requirement to reasonably supervise individuals to ensure compliance with applicable laws, rules and regulations, is currently eligible for minor rule fines in the rules of the Exchange's affiliate NYSE Arca.
Article 6, Rule 5(b) (Designation of persons with supervisory authority) provides that each Participant Firm must designate a principal executive officer, general partner or managing partner to hold overall authority and responsibility for the firm's internal supervision and compliance with securities laws and regulations. This designated supervisor may formally delegate his or her supervisory duties and authority to other persons within the firm. The Rule further provides that Participants must maintain, for a period of not less than six years (the first two years in an easily accessible place), records of the names of all persons who are designated as supervisory personnel and the dates for which those designations are effective. In the absence of such designation by a Participant Firm, the Firm's General Partner(s), President, Chief Executive Officer or other principal executive officer shall be deemed to be responsible for a Firm's internal supervision and compliance function. In addition, each Participant Firm shall designate and specifically identify to the Exchange on Schedule A of Form BD one or more principals to serve as a Chief Compliance Officer. The requirement in Article 6, Rule 5(b) to designate and specifically identify persons with supervisory responsibility is currently eligible for minor rule fines in the rules of the Exchange's affiliate NYSE Arca.
As noted, Article 12, Rule 8(h)(1)(N) of the Exchange's current minor rule plan makes failure to establish, maintain and enforce written supervisory procedures under Article 6, Rule 5(b) eligible for a minor rule fine. However, as described above Article 6, Rule 5(b) relates to the designation of persons with supervisory authority and not written supervisory procedures, which is governed by Article 6, Rule 5(c). In 2011, Article 12, Rule 8 was amended to include, among other things, new reporting and recordkeeping provisions, which included “written supervisory procedures (Article 6, Rule 5(b)).”
Finally, the Exchange proposes a new subsection (f) titled “Recommended Fine Schedule” that would reproduce the current Recommended Fine Schedule from the Fee Schedule with the following changes and corrections. The Recommended Fine Schedule in the Fee Schedule would be deleted:
• The Exchange would add a new sub-heading titled “Reporting and Record Retention Violations”
• The first 12 entries as well as entries 16 through 23 would be reproduced without change from the
• Item 13 would be “Registration and Approval of Participant Personnel (Article 6, Rule 2(a) & (b))”. The proposed first, second and third level fines for violations of Article 6, Rule 2(b) of $250 for the first violation, $750 for the second violation and $1,500 for the third and subsequent violations would be the same as those in the Exchange's current Recommended Fine Schedule in the Fee Schedule for violations of Article 6, Rule 2(a).
• Items 14 and 15—“Failure to Comply with Supervision Requirements (Article 6, Rule 5(a) & (b))” and “Written Supervisory Procedures (Article 6, Rule 5(c)),” respectively—would be added to proposed Rule 10.9271(f) consistent with the changes to proposed Rule 10.9217(e)(14) and (15) described above. The proposed first, second and third level fines for violations of Article 6, Rule 5(a) and (b) in proposed Rule 10.9217(e)(14) and Article 6, Rule 5(c) in proposed Rule 10.9217(e)(15) would be $500 for the first violation, $1,000 for the second violation and $2,500 for the third and subsequent violations. These fine levels would be the same as the current fines in the Recommended Fine Schedule in the Fee Schedule for violations of Article 6, Rule 5(b).
• Finally, item 24 would be “Consolidated Audit Compliance Rule (Rule 6.6800 Series).” The corresponding fine “Up to $2,500.00” would be transposed from current Article 12, Rule 8 to new footnote ** following “Rule 6.6800 Series.”
• The Exchange would add a new second sub-heading titled “Minor Trading Rule Violations” that would set forth the corresponding fines for first, second and third and subsequent violations for the 11 rules set forth under the heading “Minor Trading Rule Violations” in proposed Rule 10.9217(e), with the following changes and corrections:
○ The entry for “Failure to clear the Matching System (Article 20, Rule 7)” and corresponding fines would not be included. This rule was deleted from Article 12, Rule 8 8(h)(2)(F) in 2019 as part of the transition of trading on the Exchange to the Pillar trading platform but the Exchange inadvertently failed to update the Recommended Fine Schedule in the Fee Schedule.
○ The Exchange would include “Short Sales (Rule 7.16)” as item 10. Rule 7.16 was added to Article 12, Rule 8 in 2019 as part of the transition of trading on the Exchange to the Pillar trading platform but the Exchange inadvertently failed to update the Recommended Fine Schedule in the Fee Schedule.
○ Finally, the Exchange would include “Failure to comply with Authorized Trader requirements (Rule 7.30)” as item 11. Rule 7.30 was also added to Article 12, Rule 8 as part of the transition to Pillar in 2019 but the Exchange inadvertently failed to update the Recommended Fine Schedule in the Fee Schedule.
As noted, proposed subsection (a) of proposed Rule 10.9217 is substantially the same as NYSE Arca Rule 10.9217(a) except for changes reflecting the Exchange's membership. The Exchange proposes that a fine thereunder would not exceed $5,000 (the amount reflected in current Article 12, Rule 8).
Proposed subsections (b), (c) and (d) are also substantially the same as NYSE Arca Rule 10.9217(b), (c) and (d) with the only changes reflecting the Exchange's membership.
Unlike current Article 12, Rule 8(e) described above, proposed Rule 10.9216(b) and Rule 10.9217 would not permit a Respondent to contest a minor rule violation letter. Rather, as proposed, if the Respondent rejects the minor rule violation letter, then a complaint must be filed under proposed Rule 10.9211, and the minor rule violation letter may not be introduced into evidence.
The proposed rule change is consistent with Section 6(b) of the Act,
Minor rule fines provide a meaningful sanction for minor or technical violations of rules. The Exchange believes that the proposed rule change will strengthen the Exchange's ability to carry out its oversight and enforcement responsibilities in cases where full disciplinary proceedings are unwarranted in view of the minor nature of the particular violation. Specifically, the proposed rule change is designed to prevent fraudulent and manipulative acts and practices because it will provide the Exchange the ability to issue a minor rule fine for violations of its rules governing reporting, record retention and trading in situations where either a cautionary action letter or a more formal disciplinary action may not be warranted or appropriate.
As noted, the Exchange would retain its list of minor rule violations with certain technical and conforming amendments, while adopting its affiliates' process for imposing minor rule violation fines.
Specifically, the proposed additions are designed to prevent fraudulent and manipulative acts and practices because it will provide the Exchange the ability to issue a minor rule fine for violations of its rules governing general registration and supervision requirements in situations where a more formal disciplinary action may not be warranted or appropriate. As provided for in proposed Rule 10.9217(d), nothing in proposed Rule 10.9217 would require the Exchange to impose a minor rule fine for a violation of any eligible rule and that if the Exchange determines that any violation is not minor in nature, the Exchange may, at its discretion, proceed with formal disciplinary action rather than under proposed Rule 10.9217.
The Exchange also believes that adding rules based on the rules of its affiliate to its list of eligible minor rule violations would promote fairness and consistency in the marketplace by permitting the Exchange to issue a minor rule fine for violations of substantially similar rules that are eligible for minor rule treatment on the Exchange's affiliate, thereby harmonizing minor rule plan fines across affiliated exchanges for the same conduct. As noted above, Article 6, Rule 2(b), 5(a) and 5(b) are substantially similar to NYSE National and NYSE Arca rules of similar purpose, which are each separately eligible for a minor rule fine under the respective market's version of proposed Rule 10.9217.
Further, the Exchange believes that the proposed additions to its list of rules eligible for minor rule fines based on the rules of its affiliate are consistent with Section 6(b)(6) of the Act,
The Exchange believes that moving the Recommended Fine Schedule for minor rule violations from the Fee Schedule to proposed Rule 10.9217 and removing it from the Fee Schedule would add clarity and transparency to the Exchange's rules by reflecting the recommended fines for minor rule violations in the same place in the Exchange's rules. Similarly, updating the Recommended Fine Schedule to delete obsolete rules and add recommended fines for rules that were added to the list of minor rules but inadvertently omitted from the Recommended Fine Schedule would also add clarity and transparency to the Exchange's rules. The Exchange believes that adding such clarifying language would also be consistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion.
Further, the Exchange believes that adding recommended fines for Rule 7.16 and Rule 7.30 that were inadvertently omitted from the current Recommended Fine Schedule based on the fines for the same rules set forth in the rules of its affiliate would promote fairness and consistency in the marketplace by permitting the Exchange to issue a minor rule fine for violations of substantially similar rules that are eligible for minor rule treatment on the Exchange's affiliate, thereby harmonizing minor rule plan fines across affiliated exchanges for the same conduct. As noted above, the proposed first, second and third level fines for violations of Rule 7.16 are the same as those in NYSE Arca Rule 10.9217(i)(1)1. for violations of NYSE Arca Rule 7.16-E, and the proposed first, second and third level fines for violations of Rule 7.30 are the same as those in NYSE Arca Rule 10.9217(i)(1)5. for violations of NYSE Arca Rule 7.30-E.
Finally, the Exchange also believes that the proposed changes are designed to provide a fair procedure for the disciplining of members and persons associated with members consistent with Sections 6(b)(7) and 6(d) of the Act.
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 proposed change is not designed to address any competitive issue but rather to update the Exchange's rules to strengthen the Exchange's ability to carry out its oversight and enforcement functions and deter potential violative conduct and to harmonize its rules with the rules of its affiliate.
No written comments were solicited or received with respect to the proposed rule change.
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.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that Rules 10.9216(b) and 10.9217, which are based on the rules of an affiliate exchange, are an effective way to discipline a member for a minor violation of a rule. The Commission also believes that the proposed addition of certain rules to the Exchange's list of current minor rule violations provides a reasonable means of addressing violations that do not rise to the level of requiring formal disciplinary proceedings, while providing greater flexibility in handling certain violations. In addition, the Commission believes that the Exchange's proposal to move the Recommended Fine Schedule for minor rule violations from the Fee Schedule to proposed Rule 10.9217 and make certain amendments and corrections are consistent with the Act because these changes will add clarity to the Exchange's rules.
In approving the propose rule change, the Commission in no way minimizes the importance of compliance with the Exchange's rules and all other rules subject to fines under Rules 10.9216(b) and 10.9217. The Commission believes that a violation of any self-regulatory organization's rules, as well as Commission rules, is a serious matter. However, Rules 10.9216(b) and 10.9217 provide a reasonable means of addressing rule violations that may not rise to the level of requiring formal disciplinary proceedings, while providing greater flexibility in handling certain violations. The Commission expects that the Exchange will continue to conduct surveillance with due diligence and make a determination based on its findings, on a case-by-case basis, whether a fine of more or less than the recommended amount is appropriate for a violation under Rules 10.9216(b) and 10.9217 or whether a violation requires formal disciplinary action.
For the same reasons as discussed above, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 20, 2021, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On November 10, 2021, pursuant to Section 19(b)(2) of the Exchange Act,
This order disapproves the proposed rule change. The Commission concludes that NYSE Arca has not met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposal is consistent with the requirements of Exchange Act Section 6(b)(5), and in particular, the requirement that the rules of a national securities exchange be “designed to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.”
When considering whether NYSE Arca's proposal to list and trade the Shares is designed to prevent fraudulent and manipulative acts and practices, the Commission applies the same standard used in its orders considering previous proposals to list bitcoin
The standard requires such surveillance-sharing agreements since they “provide a necessary deterrent to manipulation because they facilitate the availability of information needed to fully investigate a manipulation if it were to occur.”
In the context of this standard, the terms “significant market” and “market of significant size” include a market (or group of markets) as to which (a) there is a reasonable likelihood that a person attempting to manipulate the ETP would also have to trade on that market to successfully manipulate the ETP, so that a surveillance-sharing agreement would assist in detecting and deterring misconduct, and (b) it is unlikely that trading in the ETP would be the predominant influence on prices in that market.
Consistent with this standard, for the commodity-trust ETPs approved to date for listing and trading, there has been in every case at least one significant, regulated market for trading futures on the underlying commodity—whether gold, silver, platinum, palladium, or copper—and the ETP listing exchange has entered into surveillance-sharing agreements with, or held Intermarket Surveillance Group (“ISG”) membership in common with, that market.
Listing exchanges have also attempted to demonstrate that other means besides surveillance-sharing agreements will be sufficient to prevent fraudulent and manipulative acts and practices, including that the bitcoin market as a whole or the relevant underlying bitcoin market is “uniquely” and “inherently” resistant to fraud and manipulation.
As discussed in more detail below, NYSE Arca does
In the analysis that follows, the Commission examines whether the proposed rule change is consistent with Section 6(b)(5) of the Exchange Act by addressing: In Section III.B.1 assertions that other means besides surveillance-sharing agreements will be sufficient to prevent fraudulent and manipulative acts and practices; and in Section III.B.2 assertions relating to NYSE Arca's surveillance-sharing agreements related to bitcoin.
Based on the analysis, the Commission concludes that NYSE Arca has not established that other means to prevent fraudulent and manipulative acts and practices are sufficient to justify dispensing with the requisite surveillance-sharing agreement. And as mentioned above, NYSE Arca does not assert that it has a comprehensive surveillance-sharing agreement with a regulated market of significant size related to bitcoin. Moreover, as discussed further below, NYSE Arca repeats various assertions made in prior bitcoin-based ETP proposals that the Commission has previously addressed and rejected—and more importantly, NYSE Arca does not respond to the Commission's reasons for rejecting those assertions but merely repeats them. As a result, the Commission is unable to find that the proposed rule change is consistent with the statutory requirements of Exchange Act Section 6(b)(5).
The Commission emphasizes that its disapproval of this proposed rule change does not rest on an evaluation of whether bitcoin, or blockchain technology more generally, has utility or value as an innovation or an investment. Rather, the Commission is disapproving this proposed rule change because, as discussed below, NYSE Arca has not met its burden to demonstrate that its proposal is consistent with the requirements of Exchange Act Section 6(b)(5).
As described in more detail in the Notice,
The investment objective of the Trust is to track the performance of bitcoin, as measured by the performance of the MVIS One River Carbon Neutral Bitcoin Index (“Index”), adjusted for the Trust's expenses and other liabilities.
The Index value would be the benchmark value of the bitcoin, less the estimated daily cost of offsetting the carbon emissions
The Trust intends to offset the carbon footprint associated with bitcoin once a quarter by paying for the instantaneous retirement of voluntary carbon credits equal to the daily estimated carbon emissions associated with the bitcoins held by the Trust.
BNY Mellon would calculate the net asset value (“NAV”) of the Trust once each Exchange trading day. The NAV for a normal trading day would be released after 4:00 p.m. E.T. (often by 5:30 p.m. E.T. and almost always by
The Trust would provide website disclosure of its bitcoin holdings daily.
The Trust would process all creations and redemptions in-kind and only in one or more blocks of 50,000 Shares (“Baskets”).
Although the Trust would create Baskets only upon the receipt of bitcoins, and redeem Baskets only by distributing bitcoins, a separate cash exchange process would be made available to authorized participants. Under the cash exchange process, an authorized participant would be able to deposit cash with BNY Mellon, which would facilitate the purchase or sale of bitcoins through a liquidity provider (“Liquidity Provider”) on behalf of an authorized participant. The bitcoin purchased (or sold) by the Liquidity Provider in connection with the cash exchange process would, in turn, be delivered to (or from, as appropriate) the Custodian, on behalf of the Trust, in exchange for Baskets.
The Commission must consider whether NYSE Arca's proposal is consistent with the Exchange Act. Section 6(b)(5) of the Exchange Act requires, in relevant part, that the rules of a national securities exchange be designed “to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.”
The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,
As stated above, the Commission has recognized that a listing exchange could demonstrate that other means to prevent fraudulent and manipulative acts and practices are sufficient to justify dispensing with a comprehensive surveillance-sharing agreement with a regulated market of significant size, including by demonstrating that the bitcoin market as a whole or the relevant underlying bitcoin market is uniquely and inherently resistant to fraud and manipulation.
NYSE Arca does not assert that the bitcoin market as a whole or the relevant underlying bitcoin market is uniquely and inherently resistant to fraud and manipulation. The Exchange, however, does assert that the “significant liquidity in the spot market and resultant minimal impact of market orders on the overall price of bitcoin, in conjunction with the Trust's offering only in-kind creation and redemption of Shares . . . mitigates the risk associated with potential manipulation and financially disincentivizes manipulation of the Index.”
In support of the proposal, the Exchange states that “bitcoin is dominant, accounting for more than 49% of the total market capitalization of cryptoassets” and that, “[a]s of June 2021, the market cap for [b]itcoin is over $600 billion.”
NYSE Arca also states that the bitcoin marketplace is maturing. The Exchange cites to increased institutional participation, noting that public and established companies now hold bitcoin, and that other financial market participants (
Additionally, NYSE Arca states that the Commodity Futures Trading Commission (“CFTC”) has “exercised its regulatory jurisdiction in bringing a number of enforcement actions related to bitcoin and against trading platforms that offer cryptoasset trading, including, in certain cases, against defendants for direct trading of cryptoassets.”
Finally, according to NYSE Arca, certain other regulatory bodies, such as the U.S. Department of the Treasury's Financial Crimes Enforcement Network (“FinCEN”), the U.S. Office of the Comptroller of the Currency (“OCC”), and the Board of Governors of the Federal Reserve System (“Federal Reserve”) have recently proposed or clarified rules to enhance transparency,
As with the previous proposals, the Commission here concludes that the Exchange's assertions about the general liquidity, growth, and acceptance of the bitcoin market do not constitute other means to prevent fraud and manipulation sufficient to justify dispensing with the requisite surveillance-sharing agreement. While the Exchange states that the significant liquidity in the spot market and resultant minimal impact of market orders on the overall price of bitcoin mitigates the risk associated with potential manipulation, such assertion is general and conclusory. Indeed, apart from the market capitalization of bitcoin and the number of unique bitcoin wallet addresses, NYSE Arca provides no analysis or evidence of liquidity in the bitcoin spot market or its assertion that there is “minimal impact of market orders” on the price of bitcoin. Likewise, NYSE Arca provides no analysis or evidence to demonstrate how liquidity or minimal impact of market orders serves to detect and deter potential fraud and manipulation.
While the Sponsor and NYSE Arca provide figures describing the size of the bitcoin spot market,
Further, although the Exchange describes the bitcoin marketplace as maturing with increased institutional participation and acceptance,
In support of its proposal, NYSE Arca also states that the “CFTC has exercised its regulatory jurisdiction in bringing a number of enforcement actions related to bitcoin and against trading platforms that offer cryptoasset trading.”
Moreover, even if, as the Exchange maintains, the CFTC “has historically asserted jurisdiction over spot market commodities trading, where manipulative trading in the spot market can
Further, while the Exchange describes how other U.S. regulatory bodies have clarified or considered rulemaking initiatives to enhance transparency, custody, and account services relating to cryptoassets and other digital assets,
In addition, NYSE Arca does not address risk factors specific to the bitcoin blockchain and bitcoin platforms, described in the Trust's Registration Statement, that undermine the argument that the concerns previously articulated by the Commission relating to fraud and manipulation of the bitcoin market have been mitigated.
The Exchange states that the “use of the Index eliminates those bitcoin spot markets with indicia of suspicious, fake, or non-economic volume from the NAV calculation methodology pursuant to which the Trust prices its Shares.”
Based on assertions made and the information provided, the Commission can find no basis to conclude that NYSE Arca has articulated other means to prevent fraud and manipulation that are sufficient to justify dispensing with the requisite surveillance-sharing agreement. The record does not demonstrate that the proposed methodology for calculating the Index would make the proposed ETP resistant to fraud or manipulation such that a surveillance-sharing agreement with a regulated market of significant size is unnecessary. Specifically, NYSE Arca has not assessed the possible influence that spot platforms not included among the Index's underlying bitcoin platforms would have on the Index.
Moreover, NYSE Arca's assertions that the Index's methodology helps make the Index resistant to manipulation are contradicted by the Registration Statement's own statements. Specifically, the Registration Statement states, among other things, that “a number of bitcoin spot markets have been closed or faced issues due to fraud” and that “[t]he nature of the assets held at bitcoin spot markets makes them appealing targets for hackers and a number of bitcoin spot markets have been victims of cybercrimes.”
With respect to the Index specifically, the Registration Statement also states that “[p]ricing sources used by the Index are digital asset spot markets that facilitate the buying and selling of bitcoin and other digital assets”; “[a]lthough many pricing sources refer to themselves as “exchanges,” they are not registered with, or supervised by, the [Commission] or CFTC and do not meet the regulatory standards of a national securities exchange or designated contract market.”
Moreover, although the Exchange states that the Index's “oversight [is] managed by an independent committee”
NYSE Arca also argues that the use of 20 rolling three-minute increments means that a malicious actor would need to sustain efforts to manipulate the market over an extended period of time, or would need to replicate efforts multiple times, potentially triggering review from the spot market or regulators, or both.
NYSE Arca also does not explain the significance of the Index's unsubstantiated resistance to manipulation to the overall analysis of whether the proposal to list and trade the Shares is designed to prevent fraud and manipulation. Even assuming that NYSE Arca's argument is that, if the Index is resistant to manipulation, the Trust's NAV, and thereby the Shares as well, would be resistant to manipulation, NYSE Arca has not established in the record a basis for such conclusion.
Because NYSE Arca does not address or provide any analysis with respect to these issues, the Commission cannot conclude that the Index aids in the determination that the proposal to list and trade the Shares is designed to prevent fraudulent and manipulative acts and practices. The Exchange has not demonstrated that the Index methodology makes the proposed ETP resistant to manipulation. While the proposed procedures for calculating the Index using prices from the constituent bitcoin platforms may be intended to provide some degree of protection against attempts to manipulate the Index, these procedures are not sufficient for the Commission to dispense with the requisite surveillance-sharing agreement with a regulated market of significant size.
NYSE Arca also asserts that, because the Trust will, in ordinary circumstances, not purchase or sell bitcoin, but instead process all creations and redemptions in-kind in transactions with authorized participants, “the Trust is uniquely protected against potential attempts by bad actors to manipulate the price of bitcoin on spot markets contributing to the Index and thereby the Trust's NAV calculation.”
NYSE Arca has not demonstrated that in-kind creations and redemptions provide the Shares with a unique resistance to manipulation.
As NYSE Arca has not demonstrated that other means besides surveillance-sharing agreements will be sufficient to prevent fraudulent and manipulative acts and practices, the Commission next examines whether the record supports the conclusion that NYSE Arca has entered into a comprehensive surveillance-sharing agreement with a regulated market of significant size relating to the underlying assets. In this context, the term “market of significant size” includes a market (or group of markets) as to which (i) there is a reasonable likelihood that a person attempting to manipulate the ETP would also have to trade on that market to successfully manipulate the ETP, so that a surveillance-sharing agreement would assist in detecting and deterring misconduct, and (ii) it is unlikely that trading in the ETP would be the predominant influence on prices in that market.
In its proposal, however, NYSE Arca does not identify any market as a “market of significant size” and accordingly makes no assertions regarding, and provides no information to establish, either prong of the “market of significant size” determination.
Pursuant to Section 19(b)(2) of the Exchange Act, the Commission must disapprove a proposed rule change filed by a national securities exchange if it does not find that the proposed rule change is consistent with the applicable requirements of the Exchange Act—including the requirement under Section 6(b)(5) that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices.
For the reasons discussed above, NYSE Arca has not met its burden of demonstrating that the proposal is consistent with Exchange Act Section 6(b)(5),
One commenter argues that the approval of a futures-based ETP should allow for the Commission to approve NYSE Arca's proposal because a futures-based ETP and the Trust are both reliant on bitcoin's underlying price, and ETPs that invest in bitcoin futures contracts present substantially similar risk of manipulation as the Trust.
The Commission disagrees with the premise of the argument. The proposed rule change does not relate to the same underlying holdings as either exchange-traded funds registered under the Investment Company Act of 1940 that provide exposure to bitcoin through CME bitcoin futures or bitcoin futures ETPs. The Commission considers the proposed rule change on its own merits and under the standards applicable to it. Namely, with respect to this proposed rule change, the Commission must apply the standards as provided by Section 6(b)(5) of the Exchange Act, which it has applied in connection with its orders considering previous proposals to list bitcoin-based commodity trusts and bitcoin-based trust issued receipts.
Moreover, when the Commission recently approved proposals by NYSE Arca and Nasdaq to list and trade shares of ETPs holding bitcoin futures contracts that trade on the Chicago Mercantile Exchange, Inc. (“CME”) as their only non-cash holdings, the Commission found that each listing exchange had met its obligations under Exchange Act Section 6(b)(5) by demonstrating that the exchange had a comprehensive surveillance-sharing agreement with a regulated market of significant size
The Commission also received comment letters that addressed the general nature of bitcoin
For the reasons set forth above, the Commission does not find, pursuant to Section 19(b)(2) of the Exchange Act, that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with Section 6(b)(5) of the Exchange Act.
By the Commission.
On March 21, 2022, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On May 23, 2022, the Exchange filed Amendment No. 1 to the proposed rule change, which superseded the proposed rule change as originally filed. Amendment No. 1 to the proposed rule change is described in Items I and II below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons.
The Exchange proposes to modify certain pricing limitations for companies listing in connection with a Direct Listing with a Capital Raise in which the company will sell shares itself in the opening auction on the first day of trading on Nasdaq. This Amendment No. 1 supersedes the original filing in its entirety.
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.
Nasdaq is filing this amendment to SR-NASDAQ-2022-027
In 2021, Nasdaq adopted Listing Rule IM-5315-2 to permit a company to list in connection with a primary offering in which the company will sell shares itself in the opening auction on the first day of trading on the Exchange (a “Direct Listing with a Capital Raise”);
Nasdaq now proposes to modify the Pricing Range Limitation
Currently, a Direct Listing with a Capital Raise must begin trading on Nasdaq following the initial pricing through the Cross, which is described in Rules 4120(c)(9) and 4753.
Currently, in addition to pricing within the Pricing Range Limitation,
While many companies are interested in alternatives to traditional IPOs, based on conversations with companies and their advisors Nasdaq believes that there may be a reluctance to use the existing Direct Listing with a Capital Raise rules because of concerns about the Pricing Range Limitation.
One potential benefit of a Direct Listing with a Capital Raise as an alternative to a traditional IPO is that it could maximize the chances of more efficient price discovery of the initial public sale of securities for issuers and investors. Unlike an IPO where the offering price is informed by underwriter engagement with potential investors to gauge interest in the offering, but ultimately decided through negotiations between the issuer and the underwriters for the offering, in a Direct Listing with a Capital Raise the initial sale price is determined based on market interest and the matching of buy and sell orders in an auction open to all market participants. In that regard, in the Approval Order the Commission stated that:
The opening auction in a Direct Listing with a Capital Raise provides for a different price discovery method for IPOs which may reduce the spread between the IPO price and subsequent market trades, a potential benefit to existing and potential investors. In this way, the proposed rule change may result in additional investment opportunities while providing companies more options for becoming publicly traded.
A successful initial public offering of shares requires sufficient investor interest. If an offering cannot be completed due to lack of investor interest, there is likely to be a substantial amount of negative publicity for the company and the offering may be delayed or cancelled. The Pricing Range Limitation imposed on a Direct Listing with a Capital Raise (but not on a traditional IPO) increases the probability of such a failed offering because the offering cannot proceed without some delay not only for the lack of investor interest, but also if investor interest is greater than the company and its advisors anticipated. In the Approval Order, the Commission noted a frequent academic observation of traditional firm commitment underwritten offerings that the IPO price, established through negotiation between the underwriters and the issuer, is often lower than the price that the issuer could have obtained for the securities, based on a comparison of the IPO price to the closing price on the first day of trading.
As explained above, under the existing rule a security subject to a Direct Listing with a Capital Raise cannot be released for trading by Nasdaq if the actual price calculated by the Cross is above the highest price of the price range established by the issuer in its effective registration statement. In this case, Nasdaq would have to cancel or postpone the offering until the company amends its effective registration statement. At a minimum, such a delay exposes the company to market risk of changing investor sentiment in the event of an adverse market event. In addition, as explained above, the determination of the public offering price of a traditional IPO is not subject to limitations similar to the Pricing Range Limitation for a Direct Listing with a Capital Raise, which, in Nasdaq's view, could make companies reluctant to use this alternative method of going public despite its expected potential benefits. This reluctance could result in denying investors and companies the benefits of this different price discovery method.
Accordingly, Nasdaq proposes to modify the Pricing Range Limitation such that in the case of the Direct Listing with a Capital Raise, a security could be released for trading by Nasdaq if the actual price at which the Cross would occur is as much as 20% below the lowest price of the price range established by the issuer in its effective registration statement. In addition, a security could be released for trading by Nasdaq if the actual price at which the Cross would occur was above the highest price in the price range established by the issuer in its effective registration statement.
Nasdaq believes that this approach is consistent with SEC Rule 430A and question 227.03 of the SEC Staff's Compliance and Disclosure Interpretations, which generally allow a company to price a public offering 20% outside of the disclosed price range without regard to the materiality of the changes to the disclosure contained in the company's registration statement. Nasdaq believes such guidance also allows deviation above the price range beyond the 20% threshold if such change or deviation does not materially change the previous disclosure. Accordingly, Nasdaq believes that a company listing in connection with a Direct Listing with a Capital Raise can specify the quantity of shares registered, as permitted by Securities Act Rule 457, and, when an auction prices outside of the disclosed price range, use a Rule 424(b) prospectus, rather than a post-effective amendment, when either (i) the 20% threshold noted in the instructions to Rule 430A is not exceeded, regardless of the materiality or non-materiality of resulting changes to the registration statement disclosure that would be contained in the Rule 424(b) prospectus, or (ii) when there is a deviation above the price range beyond the 20% threshold noted in the instructions to Rule 430A if such deviation would not materially change the previous disclosure, in each case assuming the number of shares issued is not increased from the number of shares disclosed in the prospectus. For purposes of this rule, the 20% threshold will be calculated based on the maximum offering price set forth in the registration fee table, consistent with the Instruction to paragraph (a) of Securities Act Rule 430A.
Nasdaq notes that the Commission previously stated that while Securities Act Rule 430A permits companies to omit specified price-related information from the prospectus included in the registration statement at the time of effectiveness, and later file the omitted information with the Commission as specified in the rule, it neither prohibits a company from conducting a registered offering at prices beyond those that would permit a company to provide pricing information through a Securities Act Rule 424(b) prospectus supplement nor absolves any company relying on the rule from any liability for potentially misleading disclosure under the federal securities laws.
Nasdaq also proposes to adopt a new Price Volatility Constraint and disseminate information about whether the Price Volatility Constraint has been satisfied, which will indicate whether the security may be ready to trade. Prior to releasing a security for trading, Nasdaq allows a “Pre-Launch Period” of indeterminate length, during which price discovery takes place. The Price Volatility Constraint requires that the Current Reference Price has not deviated by 10% or more from any Current Reference Price during the Pre-Launch Period within the previous 10 minutes. The Pre-Launch Period will continue until at least five minutes after the Price Volatility Constraint has been satisfied. Nasdaq will also introduce the Near Execution Price which is the Current Reference Price at the time the Price Volatility Constraint has been satisfied; and set the Near Execution Time as such time. This change will provide investors with notice that the Cross nears execution and allows a period of at least five minutes for investors to modify their orders, if needed, based on the Near Execution Price, prior to the execution of the Cross and the pricing of the offering. Further, to assure that the Near Execution Price is a meaningful benchmark for investors, and that the offering price does not deviate substantially from the Near Execution Price, Nasdaq proposes to require, in addition to other the existing conditions stated in proposed Rule 4120(c)(9)(B)(vii), that the Cross may execute only if the actual price calculated by the Cross is no more than 10% below or above the Near Execution Price (the “10% Price Collar”).
Nasdaq notes that imbalance between the buy and sell orders could sometimes cause the Current Reference Price to fall outside the 10% Price Collar after the Price Volatility Constraint has been satisfied. Such price fluctuations could be temporary, and the Current Reference Price may return to and remain within the 10% Price Collar. The price fluctuation could also be lasting such that the Current Reference Price remains outside the 10% Price Collar. Given this, Nasdaq proposes to assess the Current Reference Price vis-à-vis the 10% Price Collar 30 minutes after the Near Execution Time. If at that time the Current Reference Price is outside the 10% Price Collar, all requirements of the Pre-Launch Period shall reset and must be satisfied again.
If the Current Reference Price 30 minutes after the Near Execution Time is within the 10% Price Collar, price formation may continue without limitations until Nasdaq, in consultation with the financial advisor to the issuer, makes the determination that the security is ready to trade (and certain existing conditions restated in proposed Rule 4120(c)(9)(B)(vii) are met). However, if at any time 30 minutes after the Near Execution Time the Current Reference Price is outside the 10% Price Collar, all requirements of the Pre-Launch Period shall reset and must be satisfied again, in the same manner as described in the immediately preceding paragraph.
Given that, as proposed, there may be a Direct Listing with a Capital Raise that could price outside the price range of the company's effective registration statement and that there may be no upside limit above which the Cross could not proceed,
In this way, investors interested in participating in the opening auction will be informed when volatility has settled to a range that will allow the open to take place and they will be informed of the price range at which the auction would take place. If the price moves outside, and remains outside this range, 30 minutes after the original range was set they will be informed of the new range and will have at least five minutes to reevaluate their investment decision.
Nasdaq also proposes to prohibit market orders (other than by the Company through its CDL Order) from the opening of a Direct Listing with a Capital Raise. This will protect investors by assuring that investors only purchase shares at a price at or better than the price they affirmatively set, after having the opportunity to review the Company's effective registration statement including the sensitivity analysis describing how the Company will use any additional proceeds raised. Accordingly, an investor participating in a Direct Listing with a Capital Raise will make their initial investment decision prior to the launch of the offering by setting the price in their limit order above which they will not buy shares in the offering, but will also have an opportunity to reevaluate their initial investment decision during the price formation process of the Pre-Launch Period based on the Near Execution Price. Under the proposed rule, such investor will have at least five minutes once the Near Execution Price has been set and before the offering may be priced by Nasdaq to modify their order, if needed. As described above, all relevant price formation information
In addition, to protect investors and assure that they are informed about the attributes of a Direct Listing with a Capital Raise, Nasdaq proposes to impose specific requirements on Nasdaq members with respect to a Direct Listing with a Capital Raise. These rules will require members to provide to a customer, before that customer places an order to be executed in the Cross, a notice describing the mechanics of pricing a security subject to a Direct Listing with a Capital Raise in the Cross, including information regarding the location of the public website where Nasdaq will disseminate the Current Reference Price.
To assure that members have the necessary information to be provided to their customers, Nasdaq proposes to distribute, at least one business day prior to the commencement of trading of a security listing in connection with a Direct Listing with a Capital Raise, an information circular to its members that describes any special characteristics of the offering, and Nasdaq's rules that apply to the initial pricing through the mechanism outlined in Nasdaq Rule 4120(c)(9)(B) and Nasdaq Rule 4753 for the opening auction, including information about the notice they must provide customers and other Nasdaq requirements that:
• Members use reasonable diligence in regard to the opening and maintenance of every account, to know (and retain) the essential facts concerning every customer and concerning the authority of each person acting on behalf of such customer; and
• members in recommending transactions for a security subject to a Direct Listing with a Capital Raise have a reasonable basis to believe that: (i) The recommendation is suitable for a customer given reasonable inquiry concerning the customer's investment objectives, financial situation, needs, and any other information known by such members, and (ii) the customer can evaluate the special characteristics, and is able to bear the financial risks, of an investment in such security.
These member requirements are intended to remind members of their obligations to “know their customers,” increase transparency of the pricing mechanisms of a Direct Listing with a Capital Raise, and help assure that investors have sufficient price discovery information.
In each instance of a Direct Listing with a Capital Raise, Nasdaq's information circular
To assure that the issuer has the ability, prior to the completion of the offering, to provide any necessary additional disclosures that are dependent on the price of the offering, Nasdaq proposes to introduce to the operation of the Cross a brief Post-Pricing Period, in circumstances where the actual price calculated by the Cross is outside of the price range established by the issuer in its effective registration statement. Specifically, in such circumstances, Nasdaq will initiate a Post-Pricing Period following the calculation of the actual price. During the Post-Pricing Period the issuer must confirm to Nasdaq that no additional disclosures are required under federal securities laws based on the actual price calculated by the Cross. During the Post-Pricing Period no additional orders for the security may be entered in the Cross and no existing orders in the Cross may be modified. The security shall be released for trading immediately following the Post-Pricing Period. If the Company cannot provide the required confirmation, then Nasdaq will postpone and reschedule the offering.
Listing Rule IM-5315-2 allows a company that has not previously had its common equity securities registered under the Act to list its common equity securities on the Nasdaq Global Select Market at the time of effectiveness of a registration statement pursuant to which the company itself will sell shares in the opening auction on the first day of trading on the Exchange.
Listing Rule IM-5315-2 provides that in determining whether a company listing in connection with a Direct Listing with a Capital Raise satisfies the Market Value of Unrestricted Publicly Held Shares
Listing Rule IM-5315-2 further provides that, for this purpose, the Market Value of Unrestricted Publicly Held Shares will be calculated using a price per share equal to the lowest price of the price range disclosed by the issuer in its effective registration statement.
Because Nasdaq proposes to allow the opening auction to price up to 20% below the lowest price of the price range established by the issuer in its effective registration statement, Nasdaq proposes to make a conforming change to Listing Rule IM-5315-2 to provide that the price used to determine such company's compliance with the Market Value of Unrestricted Publicly Held Shares is the price per share equal to the price that is 20% below the lowest price of the price range disclosed by the issuer in its effective registration statement. Nasdaq will determine that the company has met the applicable bid price and market capitalization requirements based on the same per share price. This price is the minimum price at which the company could sell its shares in the Direct Listing with a Capital Raise transaction and so assures that the company will satisfy these requirements at any price at which the auction successfully executes.
Any company listing in connection with a Direct Listing with a Capital Raise would continue to be subject to, and required to meet, all other applicable initial listing requirements, including the requirements to have the applicable number of shareholders and at least 1,250,000 Unrestricted Publicly Held Shares outstanding at the time of initial listing, and the requirement to have a price per share of at least $4.00 at the time of initial listing.
Nasdaq proposes to amend Rules 4753(a)(3)(A) and 4753(b)(2) to conform
Specifically, Nasdaq proposes changes to Rules 4753(a)(3)(A) and 4753(b)(2) to make adjustments to the calculation of the Current Reference Price, which is disseminated in the Nasdaq Order Imbalance Indicator, in the case of a Direct Listing with a Capital Raise and for how the price at which the Cross will execute. These rules currently provide that where there are multiple prices that would satisfy the conditions for determining a price, the fourth tie-breaker for a Direct Listing with a Capital Raise is the price that is closest to the lowest price of the price range disclosed by the issuer in its effective registration statement.
To conform these rules to the modification of the Pricing Range Limitation change, as described above, Nasdaq proposes to modify the fourth tie-breaker for a Direct Listing with a Capital Raise, to use the price closest to the price that is 20% below the lowest price of the price range disclosed by the issuer in its effective registration statement.
Lastly, Nasdaq proposes to clarify several provisions of the existing rules by restating the provisions of Rules 4120(c)(8)(A) and (c)(9)(A) in a clear and direct manner without substantively changing them. Specifically, Nasdaq proposes to clarify the mechanics of the Cross by specifying that Nasdaq will initiate a 10-minute Display Only Period only after the CDL Order had been entered. This clarification simply states what is already implied by the rule because the Cross and the offering may not proceed without the company's order to sell the securities in a Direct Listing with a Capital Raise. Similarly, Nasdaq proposes to clarify without changing the existing rule that Nasdaq shall select price bands for purposes of applying the price validation test in the Cross in connection with a Direct Listing with a Capital Raise. Under the price validation test, the System compares the Expected Price with the actual price calculated by the Cross to ascertain that the difference, if any, is within the price bands. Nasdaq shall select an upper price band and a lower price band. The default for an upper and a lower price band is set at zero. If a security does not pass the price validation test, Nasdaq may, but is not required to, select different price bands before recommencing the process to release the security for trading.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
Nasdaq believes that the proposed amendment to modify the Pricing Range Limitation is consistent with the protection of investors because this approach is similar to the pricing of an IPO where an issuer is permitted to price outside of the price range disclosed by the issuer in its effective registration statement in accordance with the SEC's Staff guidance, as described above.
To assure that the issuer has the ability, prior to the completion of the offering, to provide any necessary additional disclosures that are dependent on the price of the offering, Nasdaq proposes to introduce to the operation of the Cross a brief Post-Pricing Period, in circumstances where the actual price calculated by the Cross is at or above the price that is 20% below the lowest price and below the lowest price of the price range established by the issuer in its effective registration statement; or is above the highest price of the price range established by the issuer in its effective registration statement (but below the upside limit in the company's certification submitted to Nasdaq pursuant to proposed Listing Rule 4120(c)(9)(B)(vii)d.2., if any). Specifically, in such circumstances, Nasdaq will initiate a Post-Pricing Period following the calculation of the actual price. During the Post-Pricing Period the issuer must confirm to Nasdaq that no additional disclosures are required under federal securities laws based on the actual price calculated by the Cross, with such confirmation ending the Post-Pricing Period. During the Post-Pricing Period no additional orders for the security
Nasdaq believes that the proposal to allow a Direct Listing with a Capital Raise to price above any price above the price range of the company's effective registration statement is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market investors because this approach is similar to that of pricing a traditional IPO. In addition, to protect investors Nasdaq proposes to enhance price discovery transparency by providing readily available, real time pricing information to investors. To that end Nasdaq will disseminate, free of charge, the Current Reference Price on a public website (such as
Nasdaq believes that the provision prohibiting market orders (other than by the Company) from the opening of a Direct Listing with a Capital Raise is designed to protect investors because this provision will assure that investors only purchase shares at a price that is at, or better than, the price they affirmatively set, after having the opportunity to review the Company's effective registration statement including the sensitivity analysis describing how the Company will use any additional proceeds raised.
Nasdaq also proposes to adopt a new Price Volatility Constraint and disseminate information about whether the Price Volatility Constraint has been satisfied, which will indicate whether the security may be ready to trade. The Price Volatility Constraint requires that the Current Reference Price has not deviated by 10% or more from any Current Reference Price within the previous 10 minutes. The Pre-Launch Period will continue until at least five minutes after the Price Volatility Constraint has been satisfied. Nasdaq will also introduce the Near Execution Price which is the Current Reference Price at the time the Price Volatility Constraint has been satisfied; and set the Near Execution Time at such time. This change will provide investors with notice that the Cross nears execution and a period of at least five minutes to modify their orders, if needed, based on the Near Execution Price, prior to the execution of the Cross and the pricing of the offering. Further, to help assure that the offering price does not deviate substantially from the Near Execution Price, Nasdaq proposes to require, in addition to other conditions described above, that the Cross may execute only if the actual price calculated by the Cross is within the 10% Price Collar. Nasdaq believes that these changes are designed to protect investors and the public interest because an investor participating in a Direct Listing with a Capital Raise will make their initial investment decision prior to the launch of the offering by setting the price in their limit order above which they will not buy shares in the offering, but will also have an opportunity to reevaluate their initial investment decision during the price formation process of the Pre-Launch Period based on the Near Execution Price. Under the proposed rule, such investor will have at least five minutes once the Near Execution Price has been set and before the offering may be priced by Nasdaq to modify their order, if needed. While the auction may take longer than this five minute period to complete, investors are protected during this time because the Price Volatility Constraint will reset if the actual price calculated by the Cross is more than 10% below or above the Near Execution Price. Once the Price Volatility Constraint has been satisfied, Nasdaq proposes to disseminate the Near Execution Price and the Near Execution Time on a public website, such as
Nasdaq believes that the proposal to reset the Price Volatility Constraint, the Near Execution Price and the Near Execution Time in the circumstances described above is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market investors because in certain circumstances an imbalance between the buy and sell orders could sometimes cause the Current Reference Price to fall outside the 10% Price Collar after the Price Volatility Constraint has been satisfied. These provisions will protect investors by increasing the information available to them in connection with the price formation process during the opening auction.
To protect investors and increase transparency, Nasdaq also proposes to disseminate on a public website, such as
In addition, to protect investors and assure that they are informed about the attributes of a Direct Listing with a Capital Raise, Nasdaq proposes to impose specific requirements on Nasdaq members with respect to a Direct Listing with a Capital Raise. These rules will require members to provide to a customer, before that customer places an order to be executed in the Cross, a notice describing the mechanics of pricing a security subject to a Direct Listing with a Capital Raise in the Cross, including information regarding the dissemination of the Current Reference Price on a public website such as
To assure that members have the necessary information to be provided to their customers, Nasdaq proposes to distribute, at least one business day prior to the commencement of trading of a security listing in connection with a Direct Listing with a Capital Raise, an information circular to its members that describes any special characteristics of the offering, and Nasdaq's rules that apply to the initial pricing through the mechanism outlined in Nasdaq Rule 4120(c)(9)(B) and Nasdaq Rule 4753 for the opening auction, including information about the notice they must provide customers and other Nasdaq requirements that:
• Members use reasonable diligence in regard to the opening and maintenance of every account, to know (and retain) the essential facts concerning every customer and concerning the authority of each person acting on behalf of such customer; and
• members in recommending transactions for a security subject to a Direct Listing with a Capital Raise have a reasonable basis to believe that: (i) The recommendation is suitable for a customer given reasonable inquiry concerning the customer's investment objectives, financial situation, needs, and any other information known by such members, and (ii) the customer can evaluate the special characteristics, and
These member requirements are consistent with the protection of investors because they are designed to remind members of its obligations to “know their customers,” increase transparency of the pricing mechanisms of a Direct Listing with a Capital Raise, and help assure that investors have sufficient price discovery information.
Nasdaq believes that the Commission Staff has already concluded that pricing up to 20% below the lowest price and at a price above the highest price of the price range in the company's effective registration statement is appropriate for a company conducting an initial public offering notwithstanding it being outside of the range stated in an effective registration statement, and investors have become familiar with this approach at least since the Commission Staff last revised Compliance and Disclosure Interpretation 227.03 in January 2009.
Nasdaq believes that the proposed amendments to Listing Rule IM-5315-2 and Rules 4753(a)(3)(A) and 4753(b)(2) to conform these rules to the modification of the Pricing Range Limitation is consistent with the protection of investors. These amendments would simply substitute Nasdaq's reliance on the price equal to the lowest price of the price range disclosed by the issuer in its effective registration statement to the price that is 20% below such lowest price, making it more difficult to meet the requirements. In the case of Listing Rule IM-5315-2, a company listing in connection with a Direct Listing with a Capital Raise would still need to meet all applicable initial listing requirements based on the price that is 20% below the lowest price of the price range disclosed by the issuer in its effective registration statement. In the case of the Rules 4753(a)(3)(A) and 4753(b)(2) such price, which is the minimum price at which the Cross will occur, will serve as the fourth tie-breaker where there are multiple prices that would satisfy the conditions for determining the auction price, as described above. Nasdaq believes that this proposal to resolve a potential tie among the prices that satisfy all other requirements in the Cross, by choosing the price that is closest to the price that is 20% below the range, is consistent with Section 6(b)(5) of the Act because it is designed to protect investors by providing them with the most advantageous offering price among possible alternative prices.
Nasdaq also believes that the proposal, by eliminating an impediment to companies using a Direct Listing with a Capital Raise, will help removing potential impediments to free and open markets consistent with Section 6(b)(5) of the Exchange Act while also supporting capital formation.
Finally, Nasdaq believes that the proposal to clarify several provisions of the existing rules without changing them is designed to remove impediments to and perfect the mechanism of a free and open market because such changes make the rules easier to understand and apply without changing their substance.
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 proposed amendments would not impose any burden on competition, but would rather increase competition. Nasdaq believes that allowing listing venues to improve their rules enhances competition among exchanges. Nasdaq also believes that this proposed change will give issuers interested in this pathway to access the capital markets additional flexibility in becoming a public company, and in that way promote competition among service providers, such as underwriters and other advisors, to such companies.
No written comments were either solicited or received.
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” or “Exchange Act”),
BSECC is filing this proposed rule change to amend the Amended and Restated Certificate of Incorporation (“Certificate”) of its parent corporation, Nasdaq, Inc. (“Nasdaq” or the “Company”), to increase Nasdaq's authorized share capital.
The text of the proposed rule change is available on BSECC's website at
In its filing with the Commission, BSECC 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. BSECC has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Nasdaq Certificate
The total number of shares of Stock which Nasdaq shall have the authority to issue is Nine Hundred Thirty Million (930,000,000), consisting of Thirty Million (30,000,000) shares of Preferred Stock, par value $.01 per share (hereinafter referred to as “Preferred Stock”), and Nine Hundred Million (900,000,000) shares of Common Stock, par value $.01 per share (hereinafter referred to as “Common Stock”).
As noted above, the proposed amendments to the Certificate were approved by the Nasdaq Board of Directors (“Nasdaq Board”) on March 23, 2022. The proposed amendments to the Certificate would be effective when filed with the Secretary of State of Delaware, which would not occur until approval of the amendments by the stockholders of Nasdaq is obtained at the 2022 Annual Meeting of the Stockholders on June 22, 2022 and until this proposed rule change becomes effective and operative.
The trading price of Nasdaq's Common Stock has risen significantly over the past several years. Since Nasdaq first became a publicly traded company in 2002, the total number of authorized shares of Common Stock has remained constant at 300,000,000 shares. However, over the last five years, the trading price of Nasdaq's Common Stock has increased by approximately 162%.
The number of shares of Common Stock proposed to be issued in the Stock Dividend exceeds Nasdaq's authorized but unissued shares of Common Stock. The proposed rule change would increase Nasdaq's authorized shares of Common Stock and shares of capital stock sufficient to allow Nasdaq to effectuate the Stock Dividend.
The proposed changes would not otherwise alter the Certificate, including the limitations on voting and ownership set forth in Article Fourth, Section C of the Certificate that generally provides no person who beneficially owns shares of common stock or preferred stock of Nasdaq in excess of 5% of the then-outstanding securities generally entitled to vote may vote the shares in excess of 5%. This limitation mitigates the potential for any Nasdaq shareholder to exercise undue control over the operations of Nasdaq's self-regulatory subsidiaries, and facilitates the self-regulatory subsidiaries' and the Commission's ability to carry out their regulatory obligations under the Act.
BSECC believes that its proposal is consistent with Section 17A(b)(3)(A) of the Act,
The proposal to increase Nasdaq's authorized shares of Common Stock and shares of capital stock sufficient to allow Nasdaq to effectuate the Stock Dividend would not impact BSECC's ability to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act. In particular, the proposed changes would not alter the limitations on voting and ownership set forth in Article Fourth, Section C of the Certificate, and so the proposed changes would not enable a person to exercise undue control over the operations of Nasdaq's self-regulatory subsidiaries or to restrict the ability of the Commission or BSECC to effectively carry out their regulatory oversight responsibilities under the Act.
BSECC also believes that the proposal is consistent with Section 17A(b)(3)(F) of the Act
BSECC believes that the proposed rule change would remove impediments to and perfect the mechanism of a national system for the prompt and accurate clearance and settlement of securities transactions, and, in general, to protect investors and the public interest, because by increasing Nasdaq's authorized shares of Common Stock and shares of capital stock sufficient to allow Nasdaq to effectuate the Stock Dividend, the proposed rule change will facilitate broader ownership of Nasdaq.
BSECC also notes that the proposed rule change is substantially similar to a prior proposal by Intercontinental Exchange, Inc. (“ICE”), which is the holding company for three national securities exchanges, including the New York Stock Exchange. The ICE proposal amended ICE's Certificate of Incorporation to effectuate a similar stock split as proposed by BSECC herein.
Because the proposed rule change relates solely to the number of authorized shares of Common Stock and shares of capital stock of the Company and not to the operations of BSECC, BSECC 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.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”),
SCCP is filing this proposed rule change to amend the Amended and Restated Certificate of Incorporation (“Certificate”) of its parent corporation, Nasdaq, Inc. (“Nasdaq” or the “Company”), to increase Nasdaq's authorized share capital.
The text of the proposed rule change is available on the SCCP's website at
In its filing with the Commission, SCCP 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. SCCP has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Nasdaq Certificate
The total number of shares of Stock which Nasdaq shall have the authority to issue is Nine Hundred Thirty Million (930,000,000), consisting of Thirty Million (30,000,000) shares of Preferred Stock, par value $.01 per share (hereinafter referred to as “Preferred Stock”), and Nine Hundred Million (900,000,000) shares of Common Stock, par value $.01 per share (hereinafter referred to as “Common Stock”).
As noted above, the proposed amendments to the Certificate were approved by the Nasdaq Board of Directors (“Nasdaq Board”) on March 23, 2022. The proposed amendments to the Certificate would be effective when filed with the Secretary of State of Delaware, which would not occur until approval of the amendments by the stockholders of Nasdaq is obtained at the 2022 Annual Meeting of the Stockholders on June 22, 2022 and until this proposed rule change becomes effective and operative.
The trading price of Nasdaq's Common Stock has risen significantly over the past several years. Since Nasdaq first became a publicly traded company in 2002, the total number of authorized shares of Common Stock has remained constant at 300,000,000 shares. However, over the last five years, the trading price of Nasdaq's Common Stock has increased by approximately 162%.
The number of shares of Common Stock proposed to be issued in the Stock Dividend exceeds Nasdaq's authorized but unissued shares of Common Stock. The proposed rule change would increase Nasdaq's authorized shares of Common Stock and shares of capital stock sufficient to allow Nasdaq to effectuate the Stock Dividend.
The proposed changes would not otherwise alter the Certificate, including the limitations on voting and ownership set forth in Article Fourth, Section C of the Certificate that generally provides no person who beneficially owns shares of common stock or preferred stock of Nasdaq in excess of 5% of the then-outstanding securities generally entitled to vote may vote the shares in excess of 5%. This limitation mitigates the potential for any Nasdaq shareholder to exercise undue control over the operations of Nasdaq's self-regulatory subsidiaries, and facilitates the self-regulatory subsidiaries' and the Commission's ability to carry out their regulatory obligations under the Act.
SCCP believes that its proposal is consistent with Section 17A(b)(3)(A) of the Act,
The proposal to increase Nasdaq's authorized shares of Common Stock and shares of capital stock sufficient to allow Nasdaq to effectuate the Stock Dividend would not impact SCCP's ability to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act. In particular, the proposed changes would not alter the limitations on voting and ownership set forth in Article Fourth, Section C of the Certificate, and so the proposed changes would not enable a person to exercise undue control over the operations of Nasdaq's self-regulatory subsidiaries or to restrict the ability of the Commission or SCCP to effectively carry out their regulatory oversight responsibilities under the Act.
SCCP also believes that the proposal is consistent with Section 17A(b)(3)(F) of the Act
SCCP believes that the proposed rule change would remove impediments to and perfect the mechanism of a national system for the prompt and accurate clearance and settlement of securities transactions, and, in general, to protect investors and the public interest, because by increasing Nasdaq's authorized shares of Common Stock and shares of capital stock sufficient to allow Nasdaq to effectuate the Stock Dividend, the proposed rule change will facilitate broader ownership of Nasdaq.
SCCP also notes that the proposed rule change is substantially similar to a prior proposal by Intercontinental Exchange, Inc. (“ICE”), which is the holding company for three national securities exchanges, including the New York Stock Exchange. The ICE proposal amended ICE's Certificate of Incorporation to effectuate a similar stock split as proposed by SCCP herein.
Because the proposed rule change relates solely to the number of authorized shares of Common Stock and shares of capital stock of the Company and not to the operations of SCCP, SCCP 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.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notification of virtual public forums on size standards.
The U.S. Small Business Administration (SBA) is holding a series of two virtual public forums on size standards to update the public on the status of the ongoing second 5-year review of size standards as mandated by the Small Business Jobs Act of 2010 and to consider public testimony on proposed changes contained in the proposed rule titled
The virtual forum dates are as follows:
The forums will be held via the Microsoft Teams platform. Registration is required to attend these virtual events. Visit SBA's size standards web page at
Samuel Castilla, Economist, Office of Size Standards, (202) 619-0389 or
SBA is seeking public comments on a proposed rule (
The proposed changes in nine industrial sectors, including manufacturing, mining and transportation, will enable some mid-sized businesses to regain small business status and allow some advanced small businesses to retain small business status for a longer period, thereby allowing them to benefit from SBA's procurement and loan programs. These proposed revisions come on the heels of an SBA announcement (
In the April 26, 2022, proposed rule, SBA proposes to increase 150 employee-based size standards in nine NAICS sectors. SBA also proposes to retain the current 500-employee size standard for Federal procurement of supplies set aside for small businesses under the nonmanufacturer rule, which requires that small businesses qualifying as nonmanufacturers must have an average of 500 or fewer employees over the past 12 months, be primarily engaged in the wholesale or retail trade activities, take ownership or possession of the item with its personnel, equipment or facilities, consistent with industry practice, and supply the product of a U.S. small manufacturer.
The changes contained in the proposed rule are part of SBA's second five-year review of size standards, as required under the Small Business Jobs Act of 2010 (Sec. 1344, Pub. L. 111-240, 124 Stat. 2545 (September 27, 2010)). The revised size standards reflect SBA's considerations of the relevant industry and programmatic data and impacts of the ongoing COVID-19 pandemic on small businesses and the overall economy and Government response. In response to the pandemic, SBA is retaining current size standards where data otherwise suggests that size standards should be lowered.
As part of the review of size standards, SBA considers the structural characteristics of individual industries, including average firm size, the degree of competition, and Federal Government contracting trends. This ensures that small business size standards reflect current economic conditions in those industries. SBA's proposed size standards revisions rely on the “Size Standards Methodology” issued on April 11, 2019, and available at
Under this notice, SBA is advising the public that it is hosting a series of two virtual public forums on size standards to update the public on the status of the ongoing second five-year comprehensive review of size standards and consider public testimony on proposed changes contained in the April 2022 proposed rule. These forums also conform to the requirements of section 1344 of the Small Business Jobs Act of 2010 which requires SBA to hold not less than two public forums during its quinquennial review of size standards.
SBA considers public forums on size standards as a valuable component of its deliberations and believes that these forums will allow for constructive dialogue with small businesses and their representatives, industry trade associations, participants in SBA's contracting and financial assistance programs, and other stakeholders.
The format of these forums will consist of a panel of SBA representatives who will preside over the session. The oral and written testimony as well as any comments SBA receives will become part of the administrative record for SBA's consideration. Written testimony may be submitted in lieu of oral testimony on or before June 27, 2022, at
The two virtual public forums on size standards will be held on Tuesday, June 14, 2022 and Thursday, June 16, 2022
Participants must pre-register to attend either of the two virtual public forums on size standards by visiting SBA's size standards web page at
For information on services for individuals with disabilities or to request special assistance contact Samuel Castilla at the telephone number or email address indicated under the
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to August 1, 2022.
You may submit comments by any of the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument, and supporting documents to Tonya Whigham, who may be reached at (202) 485-7586 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The DS-160 and DS-156 collect biographical and other information from individuals seeking a nonimmigrant visa or individuals seeking a boarding foil for purposes of traveling to the United States to seek parole from the Department of Homeland Security. The consular officer uses the information collected to elicit information necessary to determine an applicant's eligibility for a nonimmigrant visa. The consular officer uses the information collected on the form to screen individuals seeking a boarding foil for purposes of obtaining parole pursuant to an agreement between the Department of State and the Department of Homeland Security. Most respondents use the DS-160; however, posts may authorize an individual to use the paper-based DS-156 in limited circumstances as outlined below.
Respondents submit the DS-160 electronically over an encrypted connection to the Department via the internet. The respondent will be instructed to print the confirmation page containing bar code record locators, which the consular officer will use to the locate the form during processing.
The DS-156 is the paper-based version of the DS-160. In order to obtain a copy of the DS-156, an individual must contact the Embassy or consulate at which they are applying and request a copy. A consular officer may allow an individual to submit the DS-156 in the following limited circumstances when the DS-160 cannot be accessed and the:
• Respondent has an urgent medical or humanitarian travel need, and the consular officer has received explicit permission from the Visa Office to accept form DS-156.
• Respondent is a student or exchange visitor who must leave immediately in order to arrive on time for his/her course and the consular officer has explicit permission from the Visa Office to accept form DS-156.
• Respondent is a diplomatic or official traveler with urgent government business and form DS-160 has been unavailable for more than four hours; or
• Form DS-160 has been unavailable for more than three days and the officer receives explicit permission from the Visa Office.
Announcement of meeting
The Department of State will host a virtual, open meeting of the Clean Energy Resources Advisory Committee (CERAC). There will not be an in-person option for this meeting.
CERAC will meet virtually June 17, 2022 from 11:30 to 1:00 (EST).
Bureau of Energy Resources Energy Officer Ryan Dudek at
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval to submit one information collection, which is summarized below under
Please submit comments by August 1, 2022.
You may submit comments identified by Docket ID FHWA 2022-0015 by any of the following methods:
Raj Ailaney, (202) 366-6749, Department of Transportation, Federal Highway Administration, Office of Bridges and Structures, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 7 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
In September 2021, Government Accountability Office (GAO) in their report
You are asked to comment on any aspect of these information collections, including: (1) Whether the proposed collections are necessary for the FHWA's performance; (2) the accuracy of the estimated burdens; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burdens could be minimized, including use of electronic technology, without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of these information collections.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by August 1, 2022.
You may submit comments identified by DOT Docket ID Number 2022-0016 by any of the following methods:
Peter Clark, 202-366-2025, or Arnold Feldman, 202-366-2028, Office of Real Estate Services, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 8 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
Federal Transit Administration, Department of Transportation (DOT).
Emergency clearance notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for emergency approval of a proposed information collection. DOT requests that OMB authorize this collection of information on or before June 15, 2022. Upon receiving the requested six-month emergency approval by OMB, DOT will follow the normal PRA procedures to obtain extended approval for this proposed information collection. The purpose of this collection is to enable States and local government authorities that operate legacy rail fixed guideway public transportation systems to apply for grant assistance under the All Stations Accessibility Program. DOT is requesting emergency approval due to the urgency of making the associated funds available to the States and local government authorities that meet the eligibility requirements under the law. The ICR describes the nature of the information collection and their expected burdens.
Comments on this proposal for emergency review should be submitted by June 17, 2022.
Written comments and recommendations for the proposed information collection should be sent within 15 days of publication of this notice to
Kevin Osborn, Office of Program Management—Urbanized Area Program Division, 1200 New Jersey Avenue SE, Mail Stop TPM-11, Washington, DC 20590, (202) 366-7519 or
FTA requests public comment on this information collection, including (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency; (b) the accuracy of the agency's estimate of the burden (including hours and cost); (c) ways for FTA to enhance the quality, utility and clarity of the information collection; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection. The summaries below describe the nature of the information collection requirements (ICRs) and the expected burden. The requirements are being submitted for clearance by OMB as required by the PRA.
FTA anticipates using an online, grant management system to collect the following information:
• Legal name of the applicant (
• Address, telephone, and email contact information for the applicant.
• Legal authority under which the applicant is established.
• Name and title of the authorized representative of the applicant (who will attest to the required certifications).
• DOT may also require the identity of external parties involved in preparation of the application, including outside accountants, attorneys, or auditors who may be assisting the business entity that is applying for assistance under this program.
• The specific statutory criteria that the applicant meets for eligibility under this program. The statute defines eligible applicants as state or local government authorities. Accordingly, DOT will require the applicant to identify which of these categories they meet, and how.
• Other identification numbers, including but not limited to the Employer/Taxpayer Identification Number (EIN/TIN), Data Universal Numbering System (DUNS) number, Unique Entity Identifier under 2 CFR part 25, etc. All applicants will be required to have pre-registered with the System for Award Management (SAM) at
• Description of the applicant's business operations, in sufficient detail to demonstrate how the applicant meets the statutory requirement as a municipality or community owned utility.
• Responses to evaluation criteria listed in the Notice of Funding Opportunity.
FTA estimates that it will take applicants approximately 10 hours to complete the application process. FTA estimates that grant recipients will spend another 4 hours, annually, submitting post-award reports. The burden estimate below accounts for the total amount of effort involved.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Request for information.
The Federal Transit Administration (FTA) continues to research Advanced Driver Assistance Systems (ADAS) and Automated Driving Systems (ADS) in public transportation use cases. In 2018, FTA completed its five-year Strategic Transit Automation Research Plan (STAR Plan). In preparation for the next five-year plan, FTA is issuing this request for information (RFI). This RFI seeks input from public and industry stakeholders on the next phase of research, collaboration and engagement, technology development, and demonstration of ADS or ADAS necessary to improve the safe, efficient, equitable and climate-friendly provision of public transportation and sustain the associated workforce. Comments received through this RFI will provide critical information for FTA to develop STAR Plan 2.0.
Comments are requested by August 1, 2022. Comments received after the closing date will be considered to the extent practicable.
You may file comments identified by docket number FTA-2022-0012 by any of the following methods:
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Note that all comments received will be posted without change to
Danyell Diggs, Office of Research, Demonstration, and Innovation, (202) 366-1077 or
In January 2022, Secretary Buttigieg released USDOT's Innovation Principles, which call for experimentation and learning, collaboration, and flexibility to accommodate changing technologies, while serving the Department's policy priorities and supporting workers.
FTA's transit bus automation research plan has been organized around four complementary work areas: (1) Enabling research; (2) integrated demonstrations; (3) strategic partnerships; and (4) stakeholder engagement, knowledge transfer, and technical assistance. Each work area encompasses several priority topics including, but not limited to, safety, accessibility, workforce impacts, and others. Enabling research explores fundamental questions for the transit industry to understand the costs, benefits, opportunities, and consequences of driver assist and fully automated technologies in the transit industry and implications for safe, accessible, and sustainable operations and maintenance. Integrated demonstrations provide real-world, test-bed studies of market-ready or near market-ready technologies. Demonstrations provide insight into technical performance, user acceptance, and capital and operational costs and aid in the development of standards, policies, and regulatory modernization. Strategic partnerships leverage the research of other agencies for applicability in the transit sphere. Stakeholder engagement involves broad outreach to gather input from diverse stakeholders.
To date, FTA has a number of demonstrations underway and has completed important research studies recommended in the STAR Plan. Information on all activities is available at:
Automation technologies have evolved and advanced within public transportation since the initial STAR Plan was published in 2018. More changes are expected as the transit industry further invests in automation solutions. To structure input and feedback to FTA on STAR Plan 2.0, please use the corresponding number and heading when providing responses to this request for information:
The STAR Plan 2.0 needs to reassess the priorities and areas of activity for the next five years. Examples may include workforce development, sustainability and climate impacts, guidance for investment or deployment, accessibility, cybersecurity, equity, regulations and standards, and domestic manufacturing market support, among others.
FTA seeks information from stakeholders on:
○ What topics should be a priority for FTA's transit bus automation research and demonstrations over the next five years? What specific activities or products should be a priority for FTA within these areas?
○ For any priority areas identified, are there activities that stakeholders have undertaken? What were the challenges? Are there specific areas where FTA engagement may be needed?
FTA has completed extensive enabling research, including:
○ Market Analysis for Automated Transit Buses and Supporting Systems;
○ Automation Policy Review;
○ Business Case for Transit Automation;
○ Transit Bus Applications of Light and Commercial Vehicle Automation Technology;
○ Hazard and Safety Analysis of Automated Transit Bus Applications; and
○ Test Facility Requirements for Automated Transit Vehicles;
FTA seeks information from stakeholders on:
○ What specific research questions should be addressed by FTA-supported foundational research within the next five years? Possible topic areas for research include, but are not limited to, cybersecurity, equity, standards, and workforce training.
The STAR Plan currently identifies five integrated demonstrations: Transit Bus Advanced Driver Assistance System (ADAS); Automated Shuttle; Maintenance, Yard, and Parking Operations; Mobility-on-Demand (MOD) Service; and Automated Bus Rapid Transit.
FTA seeks information from stakeholders on:
○ Are these demonstration areas still needed? What additional or alternative demonstration areas are a priority?
○ What are the biggest successes or challenges to deploying ADAS or ADS technologies for transit?
FTA routinely collaborates with other modal agencies across USDOT and participates in the community of practice to identify cross-cutting technologies with positive applicability for the transit industry.
FTA seeks information from stakeholders on:
○ What ADAS/ADS technologies proven in other transportation applications would be useful and applicable to transit use cases? Please be specific and include examples where possible.
To drive research into practice, FTA conducts multiple types of stakeholder engagement, including webinars, interviews, convening peer agencies, and presentations at conferences.
FTA seeks information from stakeholders on:
○ Are FTA's methods of stakeholder engagement sufficient? What other methods should FTA consider?
Automation will not replace transit bus operators in the foreseeable future, nonetheless, transit bus automation and automated features will impact the transit workforce, including bus operators, maintenance workers, and the domestic supply chain, including bus manufacturers.
FTA seeks information from stakeholders on:
○ What activities have agencies undertaken to understand and prepare for the impacts of automation on their workforce? Please be specific and include examples where possible.
○ What types of new skills, training, and resources may be required for transit workforce development and transition?
○ What specific areas of workforce-related research should FTA consider?
○ What types of resources could FTA provide to help agencies and their workers adopt transit bus automation?
Please note, this RFI will serve as a planning document. The RFI should not be interpreted as policy, a solicitation for applications, or an obligation on the part of the Government.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice; issuance of updated advisory bulletin.
PHMSA is issuing this updated advisory bulletin to remind owners and operators of gas and hazardous liquid pipelines, including supercritical carbon dioxide pipelines, of the potential for damage to those pipeline facilities caused by earth movement in variable, steep, and rugged terrain and terrain with varied or changing subsurface geological conditions. Additionally, changing weather patterns due to climate change, including increased rainfall and higher temperatures, may impact soil stability in areas that have historically been stable. These phenomena can pose a threat to the integrity of pipeline facilities if those threats are not identified and mitigated. Owners and operators should consider monitoring geological and environmental conditions, including changing weather patterns, in proximity to their facilities.
Mary McDaniel at 202-366-4595 or
The purpose of this updated advisory bulletin is to remind owners and operators of gas and hazardous liquid pipelines, particularly those with facilities located onshore or in inland waters, about the serious safety-related issues that can result from earth movement and other geological hazards. Additionally, changing weather patterns due to climate change may result in heavier than normal rainfall and increased temperatures causing soil saturation and flooding or soil erosion. Either phenomenon may adversely impact the stability of soil surrounding or supporting nearby pipeline facilities. The United States Geological Survey (USGS) is a resource for pipeline owners and operators in evaluating earth movement vulnerabilities of pipeline facilities.
Gas and hazardous liquid pipelines are required to be designed to withstand external loads including those that may be imposed by geological forces. Specifically, gas pipelines must be designed in accordance with 49 CFR 192.103 and hazardous liquid pipelines must be designed in accordance with 49 CFR 195.110. To comply with these regulations, the design of new pipelines, including repairs or replacement, must consider the load that may be imposed by geological forces.
Once operational, § 192.317(a) states that for gas transmission and part 192-regulated gathering pipelines “[t]he operator must take all practicable steps to protect each transmission line or main from washouts, floods, unstable soil, landslides, or other hazards that may cause the pipeline to move or to sustain abnormal loads. In addition, the operator must take all practicable steps to protect offshore pipelines from damage by mudslides, water currents, hurricanes, ship anchors, and fishing operations.” This advisory bulletin addresses those protective requirements associated with damage caused by geological factors.
In addition, § 192.705 requires operators of gas transmission lines, and applicable gas gathering lines, to have a patrol program to observe surface conditions on and adjacent to the pipeline right-of-way for indications of leaks, construction activity, and other factors affecting safety and operation. The frequency of these patrols must be based upon the size of the line, operating pressures, class locations, terrain, seasonal weather conditions, and other relevant factors. One of the primary reasons for this patrol requirement is to monitor geological movement, both slowly occurring and acute changes, which may affect the current or future safe operation of the pipeline.
Furthermore, for applicable gas pipelines § 192.613(a) states that “each operator shall have a procedure for continuing surveillance of its facilities to determine and take appropriate action concerning changes in class location, failures, leakage history, corrosion, substantial changes in cathodic protection requirements, and other unusual operating and maintenance conditions.” Section 192.613(b) further states that “[i]f a segment of pipeline is determined to be in unsatisfactory condition but no immediate hazard exists, the operator shall initiate a program to recondition or phase out the segment involved, or, if the segment cannot be reconditioned or phased out, reduce the maximum allowable operating pressure in accordance with § 192.619(a) and (b).”
For hazardous liquid pipelines, § 195.401(b)(1) states that “[w]henever an operator discovers any condition that could adversely affect the safe operation of its pipeline system, it must correct the condition within a reasonable time. However, if the condition is of such a nature that it presents an immediate hazard to persons or property, the operator may not operate the affected part of the system until it has corrected the unsafe condition.” Section 195.401(b)(2) further states that “[w]hen an operator discovers a condition on a pipeline covered under [the integrity management requirements in] § 195.452, the operator must correct the condition as prescribed in § 195.452(h).” Land movement, soil instability due to saturation, severe flooding, river scour, and river channel migration are the types of conditions that can adversely affect the safe operation of a pipeline and require corrective action under §§ 192.613(a) and 195.401(b). Additional guidance for identifying risk factors and mitigating natural force
PHMSA integrity management regulations require operators to take additional preventative and mitigative measures to prevent, and to mitigate the consequences of, failures on gas transmission lines in high consequence areas (§ 192.935) and hazardous liquid pipelines that are in or which could affect a high consequence area (§ 195.452(i)). An operator must base the additional measures on the threats the operator has identified for each pipeline segment. If an operator determines there is a threat to the pipeline, such as outside force damage (
PHMSA is aware of recent earth movement and other geological-related incidents and accidents and safety-related conditions throughout the country. Some of the more notable events, including those discussed in a prior advisory bulletin (ADB-2019-02; 84 FR 18919, 05/02/2019) are briefly described below:
• On March 11, 2022, a 22-inch hazardous liquid pipeline spilled 3,900 barrels of crude oil adjacent to the Cahokia Creek approximately 15 miles east of St. Louis, Missouri. Preliminary information indicates land movement may have contributed to this failure. The National Transportation Safety Board (NTSB) investigation into the cause continues as of the date of this notice.
• On May 30, 2021, a hazardous liquid pipeline spilled 640 barrels of gasoline in Greens Bayou affecting high consequence areas near Houston, Texas. The operator's reported cause indicated earth movement/progressive ground movement over time on a bayou bank.
• On February 19, 2021, 22,318 one thousand cubic feet
• On December 23, 2020, 4,450 Mcf natural gas was released from a gas distribution main line in the City of Newport News, Virginia. The operator report indicated that the apparent cause was pipe stress created by ground settlement which caused misalignment of a flange resulting in a pinhole leak on gasket.
• On November 19, 2020, a pipeline spilled 17.50 barrels of crude oil east of I-5 in Kern, California during routine start-up. A metallurgical analysis determined the root cause to be related to external factors (
• On October 4, 2020, an intrastate gas transmission pipeline in Goodrich, Texas released 118,724 Mcf of natural gas below the Trinity River. While no definitive root cause was determined, the operator used the geological, meteorological, site-gathered information and historical data in its computer modeling and identified earth movement of the soil surrounding the pipe as the most plausible cause of the rupture. Circumferential stress corrosion cracking may have been a contributing factor to the failure.
• On May 19, 2020, 447 Mcf was released from a gas distribution main pipeline in Edenville Township, Michigan due to heavy rain fall. An investigation confirmed a 4-inch steel pipeline was severed when significant flooding in the area caused a road washout/scouring.
• On May 4, 2020, a 30-inch natural gas pipeline ruptured and ignited near Hillsboro, Kentucky. Preliminary information indicates land movement may have contributed to this failure. The NTSB investigation into the cause continues as of the date of this notice.
• On February 22, 2020, a carbon dioxide pipeline failed approximately one mile southeast of Satartia, Mississippi, releasing approximately 30,000 barrels of liquid carbon dioxide that immediately began to vaporize at atmospheric conditions. The pipeline failed on a steep embankment which had subsided adjacent to a local highway. Heavy rains are believed to have triggered a landslide, which created axial strain on the pipeline and resulted in a full circumferential girth weld failure.
• On January 29, 2019, a pipeline ruptured near the town of Lumberport in Harrison County, West Virginia. The rupture was located at a girth weld of an elbow on the 12-inch interstate pipeline. The root cause investigation concluded that a landslide about 150 yards from the rupture moved the pipeline approximately 10 feet from its original location causing excessive stress on the pipe resulting in the rupture.
• On January 21, 2019, a 30-inch natural gas pipeline ruptured and ignited near Summerfield, Ohio. A metallurgical analysis indicates a girth weld failed due to ductile overload from a longitudinal tensile or bending force, likely from land movement.
• On June 7, 2018, a 36-inch pipeline ruptured in a rural, mountainous area near Moundsville, West Virginia, resulting in the release of approximately 165,000 Mcf of natural gas. According to a metallurgical analysis, the rupture was caused by earth movement on the right-of-way due to a single overload event. Overloading of the pipeline likely resulted from a series of lateral displacements with accompanying bending.
• On April 30, 2018, an 8-inch intrastate pipeline failed in a remote mountainous region of Marshall County, West Virginia resulting in the release of 2,658 barrels of propane. The failure was caused by lateral movement of the pipeline due to earth movement along the right-of-way.
• On January 31, 2018, a 24-inch interstate pipeline ruptured near the city of Summerfield, Ohio releasing approximately 23,500 Mcf of natural gas in a rural forested area. A root cause analysis concluded that the girth weld failure was caused by axial stress due to movement of the pipe that exceeded the cross-sectional tensile strength of the net section weld zone surrounding the crack initiation location.
• On January 9, 2018, a 22-inch transmission pipeline failed in Montecito, California. The incident resulted in a fire and explosion and the release of an estimated 12,000 Mcf of natural gas. Heavy rains and localized flooding contributed to the pipe failure.
• On December 5, 2016, approximately 14,400 barrels of crude oil were spilled into an unnamed tributary to Ash Coulee Creek, Ash Coulee Creek itself, the Little Missouri River, and their adjoining shorelines in Billings County, North Dakota. The metallurgical and root cause failure analysis indicated the failure was caused by compressive and bending forces due to a landslide impacting the pipeline. The landslide was the result of excessive moisture within the hillside creating unstable soil conditions.
• On October 21, 2016, a pipeline release of over 1,238 barrels of gasoline spilled into the Loyalsock Creek in Lycoming County, Pennsylvania. The release was caused by extreme localized flooding and soil erosion.
Within its rulemaking entitled “Safety of Gas Transmission Pipelines: Repair Criteria, Integrity Management Improvements, Cathodic Protection, Management of Change, and Other Related Amendments” (RIN 2137-AF39), PHMSA notes that it is considering adopting revisions to § 192.613 that would oblige operators of gas transmission pipelines to conduct inspections on their facilities following an extreme weather event to ensure timely identification and remediation of damage to those facilities. In addition, the Council on Environmental Quality (CEQ) recently issued interim guidance underscoring the importance of the evaluation of, and emergency planning for, geohazards for safe operation of carbon dioxide and other pipeline facilities.
Pipeline operators should consider taking the following actions to ensure pipeline safety:
1. Identify areas surrounding the pipeline that may be prone to large earth movement, including but not limited to slope instability, subsidence, frost heave, soil settlement, erosion, earthquakes, and other dynamic geologic conditions that may pose a safety risk.
2. Use geotechnical engineers during the design, construction, and ongoing operation of a pipeline system to ensure that sufficient information is available to avoid or minimize the impact of earth movement on the integrity of the pipeline system. At a minimum, operators should consider soil strength characteristics, ground and surface water conditions, propensity for erosion or scour of underlying soils, and the propensity of earthquakes or frost heave.
3. Develop design, construction, and monitoring plans and procedures for each identified location, based on the site-specific hazards identified. When constructing new pipelines, develop and implement procedures for pipe and girth weld designs to increase their effectiveness for taking loads, either stresses or strains, exerted from pipe movement in areas where geological subsurface conditions and movement are a hazard to pipeline integrity.
4. Monitoring plans may include provisions related to the following:
• Ensuring during construction of new pipelines that excavators do not steepen, load (including changing the groundwater levels) or undercut slopes which may cause excessive ground movement during construction or after operations commence.
• Conducting periodic visits and site inspections. Increased patrolling may be necessary due to potential hazards identified and existing/pending weather conditions. Right-of-way patrol staff must be trained on how to detect and report conditions that may lead to or exhibit ground movement to appropriate staff.
• Identifying geodetic monitoring points (
• Installing slope inclinometers to track ground movement at depth which may otherwise not be detectable during right-of-way patrols.
• Installing standpipe piezometers to track changes in groundwater conditions that may affect slope stability.
• Evaluating the accumulation of strain on the pipeline by installing strain gauges.
• Conducting stress/strain analysis utilizing in-line inspection tools equipped with inertia mapping unit technology and high resolution deformation in-line inspection for pipe bending and denting from movement.
• Utilizing aerial mapping light detection and ranging or other technology to track changes in ground conditions.
5. Develop mitigation measures to remediate the identified locations.
6. Monitor environmental conditions and changing weather patterns in proximity to their facilities and evaluate soil stability that may have been adversely impacted.
• The National Oceanic and Atmospheric Administration's National Centers for Environmental Information has excellent information publicly available. For example, see the National Temperature and Precipitation Maps at the National Centers for Environmental Information (
7. Use available data and information resources to assess pipeline facility vulnerability relative to landslides and other types of earth movement.
• The USGS has excellent information publicly available regarding land movement. For example, see the Landslide Hazards Maps at the USGS website (
8. Consider the findings and recommendations of pertinent research projects, studies, and reports on the impact of changing weather patterns on soil stability.
9. Mitigation measures should be based on site-specific conditions and may include:
• Re-routing the pipeline right-of-way prior to construction to avoid areas prone to large ground movement such as unstable slope areas, earthquake fault zones, permafrost movement, or scour.
• Utilize properly designed horizontal directional drilling to go below areas of potential land movement.
• Installation of drainage measures in the trench to mitigate subsurface flows and enhance surface water draining at the site including streams, creeks, runs, gullies, or other sources of surface run-off that may be contributing surface water to the site or changing groundwater levels that may exacerbate earth movement.
• Reducing the steepness of potentially unstable slopes, including installing retaining walls, soldier piles, sheet piles, wire mesh systems, mechanically stabilized earth systems and other mechanical structures.
• Installing trench breakers and slope breakers to mitigate trench seepage and divert trench flows along the surface to safe discharge points off the site or right-of-way.
• Building retaining walls and/or installing steel piling or concrete caissons to stabilize steep slope areas as
• Reducing the loading on the site by removing and/or reducing the excess backfill materials to off-site locations. Soil placement should be carefully planned to avoid triggering earth movement in other locations.
• Compacting backfill materials at the site to increase strength, reduce water infiltration, and achieve optimal moisture content.
• Drying the soil using special additives such as lime-kiln dust or cement-kiln to allow the materials to be re-used and worked at the site. Over-saturated materials may require an extensive amount of time and space to dry.
• Regrading the pipeline right-of-way to minimize scour and erosion.
• Bringing the pipeline above ground and placing it on supports that can accommodate large ground movements (
• Reducing the operating pressure temporarily or shutting-in the affected pipeline segment completely.
• Re-routing the pipeline when other appropriate mitigation measures cannot be effectively implemented to maintain safety.
Pipeline safety regulations require reporting of certain conditions that impair the serviceability of a pipeline, as noted in §§ 191.23 and 195.55.
PHMSA encourages pipeline operators to enhance their preparations and procedures beyond the minimum Federal standards and to address the unique threats, vulnerabilities, and challenges of each individual pipeline facility. Pipeline operators, Federal and state regulators, and the public have a common goal of no damage and no releases from pipeline infrastructure. Working together will better achieve our goal of zero incidents and releases.
Office of the Secretary of Transportation (OST), DOT.
Notice and request for comments.
The OST invites public comments about our intention to request the Office of Management and Budget's (OMB) approval to submit one information collection, which is summarized below under
Please submit comments by August 1, 2022.
You may submit comments identified by Docket ID OST 2022-0014 by any of the following methods:
Tara Lanigan (
For this competitive grant program, the Office of the Secretary will issue a Notice of Funding Opportunity (NOFO) that describes the requirements of the SMART Grant program, including the criteria that will be used to evaluate applications. The NOFO will provide a description of the application requirements. All eligible entities must submit a completed application in order to be considered for a grant award.
The applicants who are selected for a grant (
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○ The Final Implementation Report will demonstrate how the deployment and operational costs of the project compared to the benefits and savings; the means by which each project has met its original expectation, including data findings on the impacts of the project (
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You are asked to comment on any aspect of these information collections, including: (1) Whether the proposed collections are necessary for the OST's performance; (2) the accuracy of the estimated burdens; (3) ways for the OST to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burdens could be minimized, including use of electronic technology, without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of these information collections.
Notice and request for comments.
The Department of Transportation (DOT) invites public comments about our intention to request the Office of Management and Budget (OMB) approval for a previously approved information collection. These forms include Application for Federal Assistance (SF-424), Federal Financial Report (SF-425), Request for Advance or Reimbursement (SF-270) and Outlay Report and Request for Reimbursement for Construction Programs (SF-271). We are required to publish this notice in the
Comments must be submitted on or before July 5, 2022.
Written comments and recommendations for the renewal of information collection should be sent within 30 days of publication of this notice to
Audrey Clarke, Ph.D., Associate Director of the Financial Assistance Policy and Oversight Division, M-65, Office of the Senior Procurement Executive, Office of the Secretary, Room W83-313, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-4268.
The following adjustments have been made to the burden estimates. In 2019, the Department estimated a combined total of 1,758 respondents and 123,060 burden hours. The updated burden estimates have changed due to the Coronavirus AID Relief and Economic Security Act, the American Rescue Plan Act as well as the Infrastructure Investment and Jobs Act.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
No changes have been made to this form. The respondent burden has decreased due to the estimated number of receivables averaged over the past year.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
(1) Clause 2 of Proclamation 9705, as amended, is revised to read as follows:
(b) Except as otherwise provided in this proclamation, or in notices published pursuant to clause 3 of this proclamation, all steel articles imports covered by heading 9903.80.01, in subchapter III of chapter 99 of the HTSUS, shall be subject to an additional 25 percent ad valorem rate of duty with respect to goods entered for consumption, or withdrawn from warehouse for consumption, as follows: (i) on or after 12:01 a.m. eastern daylight time on March 23, 2018, from all countries except Argentina, Australia, Brazil, Canada, Mexico, South Korea, and the member countries of the European Union; (ii) on or after 12:01 a.m. eastern daylight time on June 1, 2018, from all countries except Argentina, Australia, Brazil, and South Korea; (iii) on or after 12:01 a.m. eastern daylight time on August 13, 2018, from all countries except Argentina, Australia, Brazil, South Korea, and Turkey; (iv) on or after 12:01 a.m. eastern daylight time on May 20, 2019, from all countries except Argentina, Australia, Brazil, South Korea, and Turkey; (v) on or after 12:01 a.m. eastern daylight time on May 21, 2019, from all countries except Argentina, Australia, Brazil, Canada, Mexico, and South Korea; (vi) on or after 12:01 a.m. eastern standard time on January 1, 2022, from all countries except Argentina, Australia, Brazil, Canada, Mexico, and South Korea, and except the member countries of the European Union through 11:59 p.m. eastern standard time on December 31, 2023, for steel articles covered by headings 9903.80.65 through 9903.81.19, inclusive; (vii) on or after 12:01 a.m. eastern daylight time on April 1, 2022, from all countries except Argentina, Australia, Brazil, Canada, Mexico, and South Korea, and except the member
(2) The first two sentences of clause 1 of Proclamation 9980 of January 24, 2020 (Adjusting Imports of Derivative Aluminum Articles and Derivative Steel Articles Into the United States), are revised to read as follows:
(3) Any imports of steel articles from Ukraine that were admitted into a U.S. foreign trade zone under ``privileged foreign status'' as defined in 19 CFR 146.41, prior to 12:01 a.m. eastern daylight time on June 1, 2022, shall be subject upon entry for consumption made on or after 12:01 a.m. eastern daylight time on June 1, 2022, to the 25 percent rate of duty imposed by Proclamation 9705, as amended.
(4) Any provision of previous proclamations and Executive Orders that is inconsistent with the actions taken in this proclamation is superseded to the extent of such inconsistency.