Forest Service
National Agricultural Statistics Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
Census Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Drug Enforcement Administration
Mine Safety and Health Administration
Wage and Hour Division
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Rural Business-Cooperative Service, Rural Housing Service, and Rural Utilities Service, Department of Agriculture (USDA).
Final rule; technical correction.
On December 10, 2021, Rural Development's Rural Business-Cooperative Service, Rural Housing Service, and Rural Utilities Service (referred to as “the Agency” or “Agency”) published a final rule with comment for the OneRD Guaranteed Loan regulation (OneRD). The final rule made necessary revisions to the policy and procedures that strengthened the oversight and management of the growing Community Facilities, Water and Waste Disposal, Business and Industry, and Rural Energy for America guarantee portfolios. Following final implementation of the rule, the Agency found that a correction due to an omission is necessary. This technical correction makes an amendment to fix a paragraph reference.
Effective July 15, 2022.
For questions on this document contact Susan Woolard, Special Projects Coordinator, Rural Development Innovation Center, U.S. Department of Agriculture, 1400 Independence Ave. SW, Stop 1522, Washington, DC 20250; telephone, 202-720-9631; email,
The Agency is issuing a technical correction to the final rule that published December 10, 2021, at 86 FR70349 that amended 7 CFR part 5001. This correction amends § 5001.126 by updating the cross-references within paragraph (e) to reflect the changes to this paragraph the Agency made in the December 2021 rule.
Business and industry, Community facility, Energy efficiency improvement, Loan programs, Renewable energy, Rural areas, Rural development, Water and waste disposal.
For the reasons stated in the preamble, the Agency corrects 7 CFR part 5001 with the following technical amendment:
5 U.S.C. 301; 7 U.S.C. 1926(a); 7 U.S.C. 1932(a); and 7 U.S.C. 8107.
(e)
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; final determination.
The U.S. Department of Energy (“DOE”) has determined that air cleaners qualify as a covered product under Part A of Title III of the Energy Policy and Conservation Act, as amended (“EPCA”). DOE has determined that classifying air cleaners as covered products is necessary or appropriate to carry out the purposes of EPCA, and that the average U.S. household energy use for air cleaners is likely to exceed 100 kilowatt-hours per year.
This final determination is effective September 13, 2022.
The docket for this rulemaking, which includes
The docket web page can be found at
Dr. Stephanie Johnson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1943. Email:
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2588. Email:
EPCA
When considering covering additional consumer product types, DOE must first determine whether these criteria from 42 U.S.C. 6292(b)(1) are met. Once a determination is made, the Secretary may prescribe test procedures to measure the energy efficiency or energy use of such product. (42 U.S.C. 6293(a)) Furthermore, once a product is determined to be a covered product, the Secretary may establish standards for such product, subject to the provisions in 42 U.S.C. 6295(o) and (p), provided that DOE determines that the additional criteria at 42 U.S.C. 6295(
DOE has not previously conducted a rulemaking for air cleaners. DOE published in the
DOE received comments in response to the September 2021 NOPD from the interested parties listed in Table II.1.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
After considering public comments on the September 2021 NOPD, DOE is issuing this final determination of coverage for this product. DOE is not prescribing test procedures or energy conservation standards as part of this determination.
After publishing the September 2021 NOPD, DOE initiated rulemaking activities to consider potential test procedure and energy conservation standards for consumer air cleaners by publishing a request for information (“RFI”) on January 25, 2022 (“January 2022 RFI”). 87 FR 3207.
In response to the January 2022 RFI, DOE received certain comments pertaining to the scope of coverage and definition for air cleaners, which are discussed in the following sections. All other comments in response to the January 2022 RFI pertaining to the test procedure or standards rulemaking will be addressed in the subsequent rulemakings, should DOE pursue such rulemakings.
Air cleaners are consumer products designed to remove particulate matter and other contaminants from the air to improve indoor air quality. DOE's analysis indicates that air cleaners meet the statutory requirements under 42 U.S.C. 6292(b)(1), and therefore issues this final determination that air cleaners are a covered product. DOE will consider test procedure and energy conservation standards rulemakings for air cleaners in the future. DOE will determine if air cleaners satisfy the provisions of 42 U.S.C. 6295(
While DOE received comments on specific topics in response to the September 2021 NOPD, discussed in sections III.A and III.B of this document, commenters also provided general feedback on the proposed determination of coverage for air cleaners.
The Joint Commenters supported DOE's proposal to include room air cleaners as a covered product and stated that they are negotiating potential test procedures and energy conservation standards for air cleaners. (Joint Commenters, No. 12 at p. 1) In additional comments filed separately, AHAM supported DOE's efforts to establish air cleaners as a covered product. (AHAM, No. 13 at p. 1) AHAM also commented that it is working on an updated standard to measure energy consumption for room air cleaners, AHAM AC-7-2021 and requested DOE to incorporate this standard by reference, once it is published, as the DOE test procedure. (AHAM, No. 13 at pp. 1-2)
The CA IOUs also supported DOE's proposal to make air cleaners a covered consumer product. (CA IOUs, No. 8 at p. 1) The CA IOUs cited the U.S. Environmental Protection Agency (“EPA”) and various State Technical Reference Manuals in commenting that the estimated lifetime of air cleaners is 9 years, and therefore, urged DOE to regulate air cleaners as soon as possible. (CA IOUs, No. 8 at p. 2) The CA IOUs encouraged DOE to work towards ensuring that air cleaners are not only efficient, but also meet consumer expectations for effectiveness, and that the information provided to consumers is clear. (CA IOUs, No. 8 at p. 5)
NYSERDA estimated that a potential standard for air cleaners would yield 0.19 million metric tons of carbon dioxide emissions reductions and result in $290 million of net present value for the state of New York. Given the significant emissions reductions, net present value, anticipated continued growth in sales, and important health benefits delivered by air cleaners, NYSERDA supported the coverage of air cleaners and encouraged DOE to move quickly to establish standards and test procedures. NYSERDA further indicated that there are many high efficiency, low-priced air cleaners on the market, which would make air cleaners a strong candidate for DOE standards. NYSERDA commented that other states have started establishing standards for air cleaners and a federal standard, established by DOE, is thus important. (NYSERDA, No. 5 at pp. 2-3)
AHRI commented that DOE should account for potential conflicts that could be caused by multiple regulations, and enumerated the various performance-based requirements and state regulations applicable to air filters that remove particulates from the air stream in ducted forced-air heating or cooling systems in residential and commercial buildings. According to AHRI, energy efficiency is important, but the main purpose of air cleaners it to provide clean air, which should be the primary focus for product design. (AHRI, No. 9 at pp. 1-3) Carrier generally supported the initiative to establish air cleaners as a covered product, but stated that the proposed definition and scope of coverage is broad and would include air cleaners that may not meet EPCA requirements. (Carrier, No. 6 at p. 1)
Corn and the Brassell Estate supported the air cleaners coverage determination with Corn stating that they are vital especially given Covid-19. (Corn, No. 4 at p. 1; Brassell Estate, No. 3 at p. 1)
DOE notes that many stakeholders commented in support of DOE's efforts to establish air cleaners as a covered consumer product. In this notice, DOE is classifying air cleaners as a covered product.
Air cleaners are products designed to remove particulate matter and other contaminants from the air to improve indoor air quality. A wide range of consumer air cleaner products are available on the market, including tabletop units, units designed for single rooms or multiple rooms, and whole-home units integrated into a central heating and cooling system. Air cleaners employ a wide variety of technologies to achieve the primary function of removing particulate matter and other contaminants from the air, and may also include other secondary functions that supplement or enhance the primary function such as providing air circulation, humidification or dehumidification, and other forms of indoor air quality improvement.
EPCA does not define air cleaners. In the September 2021 NOPD, DOE proposed the following definition to describe the scope of “air cleaners” as a covered product:
An air cleaner is a consumer product that:
(1) Is a self-contained, mechanically encased assembly;
(2) Is powered by single-phase electric current;
(3) Removes, destroys, or deactivates particulates and microorganisms from the air;
(4) Excludes products that destroy or deactivate particulates and microorganisms solely by means of ultraviolet light without a fan for air circulation; and
(5) Excludes central air conditioners, room air conditioners, portable air conditioners, dehumidifiers, and furnaces as defined in 10 CFR 430.2. 86 FR 51629, 51632.
DOE developed the definition proposed in the September 2021 NOPD based on reviewing definitions specified in the industry standard ANSI/AHAM AC-1-2020,
In response to the September 2021 NOPD, the Joint Commenters stated that they generally agreed with DOE's proposed definition and provided some suggested revisions. Specifically, the Joint Commenters suggested the second criterion in the proposed definition to be clarified to state that it is a unit that includes “an electric cord” to differentiate from whole-home units. With regard to the third criterion, the Joint Commenters suggested edits to note that an air cleaner may also remove pollutants such as volatile organic compounds (“VOCs”) and/or microorganisms from the air, in addition to particulates, to include all types of air cleaner functionality. With regard to the fourth criterion, the Joint Commenters suggested replacing “destroy or deactivate particulates and microorganisms” with “operate” to remove language that commenters stated was not necessary to repeat. (Joint Commenters, No. 12 at p. 2)
In response to the January 2022 RFI, the Joint Commenters further commented on DOE's proposed definition. The Joint Commenters suggested a definition of “consumer room air cleaner” as follows: Consumer room air cleaner means a consumer product which (1) includes conventional room air cleaners and miscellaneous room air cleaners; (2) is a self-contained, mechanically encased assembly; (3) is powered by single-phase electric current; and (4) excludes central air conditioners, room air conditioners, portable air conditioners, dehumidifiers, and furnaces, as defined in 10 CFR 430.2. (EERE-2021-BT-STD-0035, Joint Commenters, No. 8 at p. 2) The Joint Commenters further suggested definitions for the terms “conventional room air cleaner” and “miscellaneous room air cleaner” as follows: Conventional room air cleaner means a consumer room air cleaner that (1) is an electric corded unit; (2) operates with a fan for air circulation; and (3) removes, destroys, and/or deactivates particulates and may also remove pollutants, such as VOCs and microorganisms, from the air. Miscellaneous room air cleaner means a consumer room air cleaner that (1) operates without a fan for air circulation; and (2) removes, destroys, and/or deactivates particulates and may also remove pollutants, such as VOCs and microorganisms, from the air. (
The Joint Commenters further stated that they no longer agree with DOE's proposal to exclude from coverage products that use only an ultraviolet (“UV”) light and do not have a fan for air circulation, stating that these products are already beginning to appear on the market and are being marketed as room air cleaners. (
Additionally, the Joint Commenters stated that they no longer recommend that DOE include the requirement for a cord for all air cleaners because they expect that future products might be powered via a terminal box, socket, or other type of direct connection. (
Daikin suggested the following additions to the air cleaners definition: specifying that the air cleaner be powered directly from 120V supplied by a plug; has a maximum airflow rate of 400 cubic feet per minute (“CFM”); is marketed for residential use with the primary function of removing, destroying, or deactivating particulates and microorganisms from the air; and excludes products without a fan, products that provide incidental air cleaning, products powered by external transformers, or ancillary products used in conjunction with, or inside ducts of, heating, ventilation, and air conditioning (“HVAC”) equipment. (Daikin, No. 10 at pp. 2-3) Carrier provided similar suggestions including: specifying the air cleaner must be rated at 120V; designed to supply nominal airflow rate less than or equal to 400 CFM; and marketed for the primary functions of removing, destroying, or deactivating particulates and microorganisms from the air in a residential occupancy. (Carrier, No. 6 at p. 2) Daikin additionally commented that since clean air delivery rate (“CADR”), which is the metric that is calculated in ANSI/AHAM AC-1-2020, is a performance metric that is determined via testing, the scope should be defined based on the nominal airflow rate of the unit. Daikin commented that air cleaners in a residential space with existing HVAC equipment would rarely require high CFM. According to Daikin, air cleaners with airflow rates of 400 CFM and above would be considered excessive and unnecessary for residential spaces. (Daikin, No. 10 at p. 2) Similarly, Carrier also commented that it did not support including large portable air cleaners with nominal airflow rates higher than 400 CFM typically used in commercial applications, since these would not meet the airflow limits of ANSI/AHAM AC-1-2020. (Carrier, No. 6 at p. 2) Carrier commented that it would be reasonable to include air cleaners that are currently within the scope of ANSI/AHAM AC-1-2020 and the ENERGY STAR V. 2.0 Specification (
In a comment in response to the January 2022 RFI, Daikin reiterated its concerns about products that may be included within DOE's proposed definition, and urged DOE to review its recommendations in Daikin's September 2021 NOPD comments. (Daikin, EERE-2021-BT-STD-0035, No. 12 at p. 2)
AHRI suggested several revisions to the definitions DOE proposed in the September 2021 NOPD and reiterated these comments in response to the January 2022 RFI. Specifically, AHRI suggested revising the second criterion in DOE's proposed definition to state that an air cleaner is directly powered
AHRI commented that the DOE proposed definition would include products that are not presently included in ANSI/AHAM AC-1-2020 or covered by the ENERGY STAR V. 2.0 Specification. AHRI commented that the definition it suggested would ensure non-portable air cleaners, such as those that are mounted on walls and ceilings, or that provide whole-home cleaning in conjunction with central heating or air conditioning systems, would not be included in the scope of coverage. Further, AHRI explained that justifying a scope expansion would require robust analysis that would involve significant time and resources. (AHRI, No. 9 at p. 4; EERE-2021-BT-STD-0035, AHRI, No. 15 at pp. 3-4) AHRI further commented that products with airflow rates over 400 CFM should be excluded from the scope of coverage because they are not currently covered by the ENERGY STAR V. 2.0 Specification or ANSI/AHAM AC-1-2020 and cannot be tested according to the ANSI/AHAM AC-1-2020 standard. (AHRI, No. 9 at p. 4; EERE-2021-BT-STD-0035, AHRI, No. 15 at p. 4)
In response to the January 2022 RFI, MIAQ provided similar suggestions as AHRI for products that should be excluded from the air cleaner scope of coverage. MIAQ disagreed with the inclusion of non-portable air cleaners, such as those mounted on walls and ceilings, or that provide whole-home air cleaning in conjunction with central heating or air conditioning systems. (EERE-2021-BT STD-0035, MIAQ, No. 5 at p. 3) Further, MIAQ commented that the ANSI/AHAM AC-1-2020 standard does not adequately cover non-portable products, and products with airflow rates over 450 CFM are not covered by the ENERGY STAR Program. (EERE-2021-BT STD-0035, MIAQ, No. 5 at p. 3)
In response to the January 2022 RFI, Synexis LLC (“Synexis”) commented that the proposed DOE definition for consumer air cleaners does not account for all of the various technologies that exist in this space and could benefit from further clarification. (EERE-2021-BT-STD-0035, Synexis, No. 14 at p. 1) Synexis agreed with the first and second criteria in the proposed definition, but stated that the third and fourth criteria could be further clarified by providing specific information about air cleaning mechanisms and claims associated with these devices (
Blueair commented in response to the January 2022 RFI that it supports the definition proposed in the September 2021 NOPD (EERE-2021-BT-STD-0035, Blueair, No. 10 at p. 2) Lennox International Inc. (“Lennox”) also commented in response to the January 2022 RFI supporting the exclusion of UV lights from the definition, commenting that these products are already subject to “lamp” regulations. (EERE-2021-BT-STD-0035, Lennox, No. 7 at p. 2)
In response to the January 2022 RFI, NEEA commented that it supports DOE's proposal to use a broad definition for room air cleaners that includes both portable and mounted units, but that it also supports excluding other products that fit into alternate DOE product categories, namely those that are classified as “lamps primarily designed to produce radiation in the ultraviolet region of the spectrum.” (NEEA, EERE-2021-BT-STD-0035, No. 13 at p. 3) The CA IOUs recommended that DOE change the third criterion to state “removes, destroys, and/or deactivates particulates, microorganisms, and/or pollutants from the air” to encompass technologies that do a combination of these actions. The CA IOUs also suggested that the fourth criterion should be edited such that it is as comprehensive as the third criterion. (CA IOUs, No. 8 at p. 3) The CA IOUs commented that the definition of air cleaners should encompass all air cleaner technologies, including UV light, heat, PCO, and photoelectrochemical oxidation (“PECO”), beyond the fan, filters, electrostatic plates, and ion generators that are referenced in ANSI/AHAM AC-1-2020. (CA IOUs, No. 8 at p. 3)
In response to the January 2022 RFI, the CA IOUs reiterated its support for DOE's proposal in the September 2021 NOPD to cover a more comprehensive range of the consumer market for air cleaning and purification, rather than just portable air cleaners. The CA IOUs recommended that mounted and whole-home/in-duct units as well as UV lamps marketed as air cleaners be within the scope of coverage. (EERE-2021-BT-STD-0035, CA IOUs, No. 9 at pp. 9-10)
Regarding the clause “single-phase electric current” in DOE's proposed definition in the September 2021 NOPD DOE notes that this phrase was intended to include air cleaners that operate at both 120V and 240V. DOE has identified products that are designed to operate via both 120V and 240V supply power, but otherwise meet the criteria of the proposed definition of “air cleaner.” To remove any potential misunderstanding that the definition of “air cleaner” is
Similarly, DOE is not limiting the scope of coverage to a plug-in or corded unit. In-duct/whole-home air cleaners are of a type that are distributed in commerce for residential use, but may not be “plug-in” or “corded.” Additionally, as the Joint Commenters noted in their comments in response to the January 2022 RFI, products could be powered via other types of direct connections that are not plug-in or corded. (EERE-2021-BT-STD-0035, Joint Commenters, No. 8 at p. 3) As discussed in the September 2021 NOPD, ANSI/AHAM AC-1-2020 includes air cleaners that include appropriate wall mounting brackets or specifically designated instructions to mount the air cleaner integrally to the wall,
Further, based on an analysis of products available on the market, DOE notes that the pollutants that may be removed by air cleaners are not limited to particulate matter and microorganisms. Accordingly, DOE is proposing to include VOCs in the list of pollutants. DOE is additionally clarifying that any air cleaner that
Additionally, DOE is not limiting the definition based on an airflow threshold (
Regarding products that operate only on UV light (
Regarding products that provide functionality in addition to air purification within the same housing, DOE proposed to exclude certain products that provide air cleaning functionality in addition to other functionality, such as central air conditioners, room air conditioners, portable air conditioners, dehumidifiers, and furnaces, in the September 2021 NOPD.
In response to the January 2022 RFI, Lennox supported the exclusion of air cleaners associated with central air conditioning and furnace systems from the scope of a DOE consumer air cleaner efficiency standard, asserting that those products are already covered by DOE standards. Additionally, Lennox commented that the ANSI/AHAM AC-1-2020 standard and ENERGY STAR V. 2.0 Specification are only applicable to portable units, so air cleaners associated with central air conditioning and furnace systems would not be appropriate for this rulemaking. (EERE-2021-BT-STD-0035, Lennox, No. 7 at pp. 1-2) AHRI also commented that there are no test procedures to measure the energy use of in-duct air cleaners with only air cleaning components without a fan and as such, these products should be excluded from the coverage determination. AHRI further stated that energy conservation standards for portable and non-portable air cleaners, or “incidental air cleaners” (as defined by AHRI), would be different and it would not be appropriate to include these products in the same regulation. (AHRI, No. 9 at p. 6)
Additionally, AHRI commented that DOE should exclude commercial products, which AHRI described as products typically used in hospitals, airports, commercial buildings, and laboratories and have high airflow and capacity not meant for residential use. AHRI stated that air cleaners are not on the statutory list of commercial/industrial equipment permissible for regulation and noted that commercial products typically cannot be purchased by consumers, for consumer applications. AHRI noted that commercial air purifiers cannot be purchased for personal use and installation in homes and that these products are sold through business-to-business sales channels. Finally, AHRI commented that DOE has not conducted the appropriate analysis to include commercial air cleaners and that adequate test procedures do not exist. (AHRI, No. 9 at pp. 6-7; EERE-2021-BT-STD-0035, AHRI, No. 15 at pp.4-5)
In response to the January 2022 RFI, MIAQ also stated that commercial products should be excluded since air cleaners are not on the statutory list of commercial equipment permissible for regulation, the determination of energy savings would be substantially different for commercial equipment, consumer and commercial equipment are fundamentally different and have different statutory requirements, and commercial products are not available to consumers for personal use. (EERE-2021-BT STD-0035, MIAQ, No. 5 at pp. 3-4)
Daikin commented that the definition of an air cleaner as proposed in the September 2021 NOPD is broad and could encapsulate unintended products. Daikin asserted that DOE did not consider whether a product is distributed in commerce for residential or commercial use, but whether it is of a type of product distributed in commerce for residential use. Daikin stated that air cleaners marketed and sold solely for commercial applications are typically not sold through retail stores, but rather via a contractor, dealer, or distributor, and such products should be excluded from the definition of an air cleaner. (Daikin, No. 10 at pp. 1-2) Carrier commented that it did not support including whole-home air cleaners in conjunction with central heating/air conditioning systems in the
Trane Technologies commented in response to the January 2022 RFI that permanently mounted HVAC systems in buildings are already substantially regulated through building codes, product standards, and DOE regulations, and that no further standards for these product types should be considered without an exhaustive and multi-stakeholder consultative process. (EERE-2021-BT-STD-0035, Trane Technologies, No. 3 at p. 3)
ASAP
The purpose of the proposed definition, and the modified definition adopted in this final determination, is to identify the scope of certain consumer products (
DOE is also not including marketing considerations as part of the definition. In determining whether an air cleaning product were a consumer product, and therefore potentially a covered product, DOE would evaluate whether it is
AHRI also commented that the ANSI/AHAM AC-1-2020 standard is not the appropriate test procedure for other products potentially included in the scope of DOE's proposed definition, such as oven hoods or fresh air ventilators. (AHRI, No. 9 at p. 4; EERE-2021-BT-STD-0035, AHRI, No. 15 atp. 4)
Daikin commented that DOE's proposed definition covers a broad range of products, many of which cannot be tested using ANSI/AHAM AC-1-2020 or the ENERGY STAR V. 2.0 Specification. (Daikin, No. 10 at p. 2)
In response to the January 2022 RFI, MIAQ stated that the ANSI/AHAM AC-1-2020 standard is not suitable for very large or very small products due to the fixed room size of the test chamber, and is not appropriate for other products potentially included in the proposed definition, such as oven hoods or fresh air ventilators. Since all of these products would require unique test methods, MIAQ asserted that they should be excluded from the air cleaner scope of coverage. (EERE-2021-BT STD-0035, MIAQ, No. 5 at p. 3)
KSH referenced the ENERGY STAR V. 2.0 Specification's definition for a plug-in type air cleaner and commented that the test method for plug-in type air cleaners should specify that the unit should be plugged in to the outlet such that the unused socket remains accessible. (KSH, No. 2 at p. 1)
The CA IOUs commented that whole-home air purification solutions raise issues pertaining to the applicability of test procedures based on the installed application, and provided multiple examples in which according to the CA IOUs the energy use of such air purification systems is not addressed in DOE's current test procedures for consumer products. The CA IOUs also provided references to existing test procedures and building standards provisions
AHRI additionally commented that it could not provide information on technology options to improve the efficiency of air cleaners until the scope of coverage and associate definition were amended to exclude non-portable products. (AHRI, No. 9 at p. 7)
Daikin commented that it believed there may be challenges on further improving the energy efficiency of air cleaners due to the lack of potential technology options. Daikin commented that most air cleaners are free-air discharge cleaners, which do not have significant potential for energy savings. Additionally, Daikin commented that changes in motors and impellers, or modifications to reduce energy consumption in standby or off mode would not provide significant savings. Daikin commented that reducing energy consumption by reducing the pressure drop due to filters would impact the performance of air cleaners. (Daikin, No. 10 at p. 3) Daikin also stated that some products such as humidifiers or dehumidifiers may also filter/clean air, and the mechanism to generate airflow is the same and the energy consumption cannot be isolated to air cleaning only. (Daikin, No. 10 at p. 2) Carrier commented that it did not have additional information on efficiency-related technology options for air cleaners. (Carrier, No. 6 at p. 3)
NEEA recommended that air cleaner product classes should be separated by CADR/W and that standards should be established as a function of capacity. NEEA further recommended that DOE consider overall unit function when establishing standards because air cleaners that filter smaller particles often use more energy. (NEEA, No. 11 at p. 2-) NEEA also commented that efficient motors, fans, and controls should be investigated as design options for energy savings because the energy consumption of air cleaners is likely to increase in the coming years due to an increase in consumer interest for these products. (NEEA, No. 11 at p. 3) NEEA recommended that DOE include technology options such as UV light, heat, PCO, and PECO in its assessment of applicable product categories. (NEEA, No. 11 at p. 3)
NEEA also supported the development of efficiency standards and test procedures for whole-home ventilation systems, but stated that metrics specific to such systems should be established through a separate rulemaking instead of combining these equipment types with air cleaners. (NEEA, No. 11 at p. 2) NEEA further commented that DOE should consider including a maximum allowable standby or partial on-mode power limit in any future energy conservation standard because the hours of operation as well as the functionality offered in standby mode (
The CA IOUs recommended that DOE should take into account how air cleaners provide different services and applications for a variety of consumer
DOE welcomes comments provided by stakeholders regarding applicable test procedures and potential technology options, product classes, and efficiency levels. However, the air cleaner definition adopted in this final determination establishes the coverage of “air cleaners” for the purpose of Part A of EPCA. The scope of coverage is separate from a determination of the applicability of test procedures or energy conservation standards, should DOE establish test procedures and energy conservation standards. The scope of any test procedure or energy conservation standards would be considered in these respective rulemakings to the extent DOE pursues such rulemakings. As such, DOE is not limiting the scope of “air cleaner” as a covered product based on the potential availability of an industry test standard, or other test procedure or standards related issues.
Daikin commented that a labeling rule under 42 U.S.C. 6295(l)(1) could be a good driving factor for manufacturers and consumers to manufacture and consume higher efficiency products. (Daikin, No. 10 at pp. 3-4) DOE notes that the requirements under 42 U.S.C. 6295(l) are only applicable once a coverage determination has occurred and if and when DOE considers establishing standards.
The CA IOUs stated that they are engaged in discussions with several stakeholders as part of a working group to develop further recommendations regarding definitions, scope, test procedures, and efficiency standards. The CA IOUs further commented that the working group is in alignment with DOE's proposal to exclude products that offer air purification as a secondary function, but for which the main functionality, and related energy consumption, is already regulated as a covered product, such as those for central air conditioners, dehumidifiers,
In summary, based on the preceding discussion, DOE is defining “air cleaner” as a product for improving indoor air quality, other than a central air conditioner, room air conditioner, portable air conditioner, dehumidifier, or furnace, that is an electrically-powered, self-contained, mechanically encased assembly that contains means to remove, destroy, or deactivate particulates, VOCs, and/or microorganisms from the air. It excludes products that operate solely by means of ultraviolet light without a fan for air circulation.
The following sections describe DOE's evaluation of whether air cleaners fulfill the criteria for being added as a covered product pursuant to 42 U.S.C. 6292(b)(1). As stated, DOE may classify a consumer product as a covered product if:
(1) Classifying products of such type as covered products is necessary or appropriate to carry out the purposes of EPCA; and
(2) The average annual per-household energy use by products of such type is likely to exceed 100 kWh (or its Btu equivalent) per year.
DOE has determined that coverage of air cleaners is necessary or appropriate to carry out the purposes of EPCA, which include:
(1) To conserve energy supplies through energy conservation programs, and, where necessary, the regulation of certain energy uses; and
(2) To provide for improved energy efficiency of motor vehicles, major appliances, and certain other consumer products. (42 U.S.C. 6201(4) and (5))
In the September 2021 NOPD, DOE cited data presented by EPA for the ENERGY STAR Air Cleaners Program that estimated that overall shipments of room air cleaners (a subset of the products covered by the definition of “air cleaner” adopted in this final determination) were 5.17 million units. 86 FR 51629, 51633. DOE also referenced the energy consumption ratings contained in the ENERGY STAR database of certified room air cleaners,
AHRI agreed with DOE's estimates of shipments data, based on EPA and AHAM data. (AHRI, No. 9 at p. 7) ASAP
ASAP
DOE has determined that the coverage of air cleaners is both necessary and appropriate to carry out the purposes of EPCA. As indicated by the ENERGY STAR and shipments data, air cleaners comprise a significant and growing sector of the consumer products market. As a coverage determination is a prerequisite to establishing standards for these products, classifying air cleaners as a covered product is necessary and appropriate to carry out EPCA's purposes to: Conserve energy supplies through energy conservation programs; and provide for improved energy efficiency of major appliances and certain other consumer products. (42 U.S.C. 6201(4) and (5))
In the September 2021 NOPD, DOE estimated the average household energy use for air cleaners, in households that use the product, using power consumption data reported in the ENERGY STAR product database.
The CA IOUs commented that the average household energy use from air cleaners likely exceeds the thresholds set by 42 U.S.C. 6292(b)(1) and 42 U.S.C. 6295(
AHRI commented that it was difficult to provide data and information regarding annual energy use estimates for air cleaners, particularly for products not covered by the ENERGY STAR Program, such as non-portable products (wall mounted, ceiling-mounted, and whole home units). (AHRI No. 9 at p. 7) Carrier commented that it did not have information on energy use estimates for air cleaners, and stated that it is unlikely this data exists for whole-home air cleaners and large portable air cleaners with nominal airflow above 400 CFM because there is not a standard test procedure for these products. (Carrier No. 6 at p.3) Daikin commented that it did not have information on typical operational hours of air cleaners. (Daikin No. 10 at p. 3)
AHRI urged DOE to publish its energy use analysis for the proposed determination. According to AHRI different types of air cleaners employ different technologies with distinctly different energy use patterns and hours of operation, which should be accounted for in the energy use analysis. (AHRI No. 9 at p. 6) Daikin asked if DOE's annual energy use estimate considered number of operating hours and also requested DOE to provide its methodology for the calculation of annual energy use. Daikin noted that this same methodology could be applied to non-ENERGY STAR qualified products to obtain data. (Daikin No. 10 at p.3)
In the absence of additional data, DOE is using the estimates available from the ENERGY STAR database to estimate the energy use for this final determination. The ENERGY STAR database includes products with various technologies and EPA notes in the ENERGY STAR database that it calculates the annual energy consumption based on an estimated 16 hours/day in active mode (also referred to as on mode or operating mode) and 8 hours/day in standby mode (or inactive mode). DOE has used these estimates for its energy use analysis. The ENERGY STAR database includes a range of air cleaners with reported annual energy consumption ranging from 123 kWh/yr to 770 kWh/yr, with an average annual energy consumption of 299 kWh/yr. The average energy consumption of non-ENERGY STAR qualified models is likely higher.
Although the ENERGY STAR program covers only portable configurations of air cleaners, the similarity in fundamental design and operation (
Based on this analysis, DOE determines that the average annual per-household energy use for air cleaners is likely to exceed 100 kWh/yr, satisfying the provisions of 42 U.S.C. 6292(b)(1).
Based on the foregoing discussion, DOE concludes that including air cleaners, as defined in this final determination, as covered products is necessary and appropriate to carry out the purposes of EPCA, and the average annual per-household energy use by products of such type is likely to exceed 100 kWh/yr. Based on the information discussed in sections III.B of this final determination, DOE is classifying air cleaners as covered product.
This final determination does not establish test procedures or energy conservation standards for air cleaners. DOE will address test procedures and energy conservation standards through its normal rulemaking process.
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866. This determination has been determined to be not significant for purposes of E.O. 12866. As a result, OMB did not review this determination.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed this determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. This determination sets no standards; it only positively determines that future standards may be warranted and should be explored in an energy conservation standards and test procedure rulemaking. Economic impacts on small entities would be considered in the context of such rulemakings. On the basis of the foregoing, DOE certifies that the coverage determination would have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a FRFA for this determination. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
This determination, which concludes that air cleaners meet the criteria for a covered product for which the Secretary may prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p), imposes no new information or record-keeping requirements. Accordingly, the OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has analyzed this proposed action rule in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE analyzed this regulation in accordance with the National Environmental Policy Act (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix A6. This rulemaking qualifies for categorical exclusion A6 because it is a strictly procedural rulemaking and otherwise meets the requirements for application of a categorical exclusion.
E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this determination and concludes that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the product that is the subject of this determination. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by E.O. 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE examined this determination according to UMRA and its statement of policy and determined that the determination does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. As a result, the analytical requirements of UMRA do not apply.
Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This determination would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriation Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under E.O. 12866, or any successor Executive order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This determination, which does not amend or establish energy conservation standards for air cleaners, is not a significant regulatory action under E. O. 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.”
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final determination prior to its effective date. The report will state that it has been determined that the final determination is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final determination.
Administrative practice and procedure, Confidential business information, Energy conservation, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
This document of the Department of Energy was signed on June 21, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE
For the reasons stated in the preamble, DOE amends part 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2021-14-06 for all Pratt & Whitney (PW) PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, PW1525G-3, PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines. AD 2021-14-06 required repetitive borescope inspections (BSI) of certain low-pressure compressor (LPC) rotor 1 (R1) until replacement of electronic engine control (EEC) full authority digital electronic control (FADEC) software with updated software. AD 2021-14-06 also required a BSI after installation of the updated EEC FADEC software if certain Onboard Maintenance Message fault codes are displayed and meet specified criteria. AD 2021-14-06 also required, depending on the results of the BSI, replacement of the LPC R1. Since the FAA issued AD 2021-14-06, the manufacturer redesigned the compressor intermediate case (CIC) assembly to incorporate a shortened bleed duct configuration and updated the EEC FADEC software. This AD continues to require repetitive BSI of certain LPC R1s until replacement of EEC FADEC software with updated software and also a BSI after installation of the updated EEC FADEC software if certain Onboard Maintenance Message fault codes are displayed and meet specified criteria. This AD continues to require, depending on the results of the BSI, replacement of the LPC R1. This AD also requires removal and replacement of the existing CIC assembly with a CIC assembly eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 19, 2022.
For service information identified in this final rule, contact Pratt & Whitney, 400 Main Street, East Hartford, CT 06118; phone: (800) 565-0140; email:
You may examine the AD docket at
Mark Taylor, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7229; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-14-06, Amendment 39-21633 (86 FR 36061, July 8, 2021), (AD 2021-14-06). AD 2021-14-06 applied to all PW PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, PW1525G-3, PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines. The NPRM published in the
The FAA received comments from three commenters. The commenters were Air Line Pilots Association, International (ALPA), Delta Air Lines, Inc, (DAL), and an individual commenter. One commenter, ALPA, supported the proposal without change. Two commenters, DAL and an individual commenter, requested changes. The following presents the comments received on the NPRM and the FAA's response to each comment.
DAL requested that the FAA remove the following language as proposed in paragraph (g)(3) of the NPRM: “after installation of the EEC FADEC software version eligible for installation as required by paragraphs (g)(1) and (g)(2) of this AD.” DAL noted that this requirement would create an unnecessary restriction on when the BSI of the LPC R1 can be accomplished and may cause operators to perform a second BSI if the BSI of the LPC R1 was performed prior to the software upgrade.
The FAA agrees and has revised paragraph (g)(3) of this AD as requested by DAL.
DAL also requested that the FAA revise paragraph (g)(3) of this AD by changing the language from “For the model turbofan engines identified in paragraphs (g)(1) and (g)(2) . . .” to “For the model turbofan engines identified in paragraphs (g)(1) or (g)(2). . . .” DAL noted that there is no overlap in turbofan engine models between paragraphs (g)(1) and (g)(2), thus it is not possible for an engine model to be identified in both paragraphs.
The FAA disagrees with changing this AD as requested by DAL. Paragraph (g)(3) of this AD applies to the model turbofan engines identified in paragraph (g)(1) and the model turbofan engines identified in paragraph (g)(2). The FAA did not change the AD as a result of this comment.
DAL requested that the FAA add “or later” to Note 1 to paragraph (g)(4) to allow for the use of future revisions to PW Service Bulletins (SBs) PW1000G-A-72-00-0125-00A-930A-D, Issue No. 004, dated October 13, 2021, and PW1000G-A-72-00-0075-00B-930A-D, Issue No. 004, dated July 21, 2021. DAL noted that this would ensure that any LPC R1 serial numbers added in subsequent revisions to these SBs would be included in the applicability of this AD. DAL also requested that the FAA add “or later” to Note 2 to paragraph (g)(5) to allow for the use of future revisions to PW engine maintenance manual (EMM) PW1000G-A-72-00-00-02A-0B5A-A. DAL noted that this would ensure that any changes made to the guidance on determining N1 exceedance duration would be applicable within the AD. DAL also requested that the FAA add “or later” to Note 3 to paragraph (g)(5) to allow for the use of future revisions to PW EMM PW1000G-A-72-31-00-00A-312A-D, Issue No. 017, dated March 19, 2021. DAL noted that this would ensure that any changes made to the guidance on performing the BSI of the LPC R1 will be applicable within the AD. DAL also requested that the FAA add a reference to A220 aircraft maintenance publication (AMP) Task BD500-A-J72-00-00-02AAA-0B5A-A to help ensure consistency across different manuals used by on-wing maintenance personnel.
The FAA disagrees with adding “or later” to the service information referenced in notes to paragraph (g) of this AD. The use of notes in the regulatory text is for informational purposes only, and the use of this service information is not required by this AD, but may assist the operator while complying with this AD. Therefore, including future revisions of the service information referenced in the notes would not affect the applicability of this AD. Additionally, future revisions of the service information have not yet been published by the manufacturer or reviewed by the FAA. The FAA disagrees with the need to add reference to future PW EMM revisions within Note 2 to paragraph (g)(5) of this AD, as the currently cited documents provide the appropriate guidance. The FAA did not change the AD as a result of these comments.
DAL and an individual commenter requested that the FAA revise paragraph (h)(1) of this AD to change the EEC FADEC software version eligible for installation from version V2.11.12.4 to version V2.11.12.1. Both commenters noted that PW SB PW1000G-A-73-00-0052-00A-930A-D, Issue No. 001, dated October 7, 2021, defines EEC FADEC software version V2.11.12.1 as the software version that is eligible for installation on PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G-3, PW1525G, and PW1525G-3 model turbofan engines.
The FAA agrees and has updated paragraph (h)(1) of this AD.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed PW SB PW1000G-A-73-00-0025-00B-930A-D, Issue No. 001, dated November 23, 2021; PW SB PW1000G-A-72-00-0125-00A-930A-D, Issue No. 004, dated October 13, 2021; PW SB PW1000G-A-72-00-0075-00B-930A-D, Issue No. 004, dated July 21, 2021; PW SB PW1000G-A-73-00-0052-00A-930A-D, Issue No. 001, dated October 7, 2021; PW SB PW1000G-A-72-00-0121-00B-930A-D, Issue No. 001, dated July 9, 2021; PW SB PW1000G-A-72-00-0175-00A-930A-D, Issue No. 001, dated July 1, 2021.
PW SB PW1000G-A-73-00-0025-00B-930A-D, Issue No. 001, dated November 23, 2021, describes procedures for replacing or modifying the EEC to incorporate EEC FADEC software version V9.6.5.6 in PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines. PW SBs PW1000G-A-72-00-0125-00A-930A-D, Issue No. 004, dated October 13, 2021, and PW1000G-A-72-00-0075-00B-930A-D, Issue No. 004, dated July 21, 2021, describe procedures for performing repetitive BSIs of LPC R1s. PW SB PW1000G-A-73-00-0052-00A-930A-D, Issue No. 001, dated October 7, 2021, describes procedures for replacing or modifying the EEC to incorporate EEC FADEC software version V2.11.12 in PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, PW1525G-3 model turbofan engines. PW SBs PW1000G-A-72-00-0121-00B-930A-D, Issue No. 001, dated July 9, 2021, and PW1000G-A-72-00-0175-00A-930A-D, Issue No. 001, dated July 1, 2021, describe procedures for replacing or modifying the CIC assembly.
The FAA also reviewed Section PW1000G-A-72-00-00-02A-0B5A-A of PW EMM, Issue No. 016, dated January 15, 2021; and Section PW1000G-A-72-31-00-00A-312A-D of PW EMM, Issue No. 017, dated March 19, 2021. Section PW1000G-A-72-00-00-02A-0B5A-A of PW EMM, Issue No. 016, dated January 15, 2021, describes procedures for inspecting the engine for possible engine damage after receiving notification of an N1 or N2 overspeed operation. Section PW1000G-A-72-31-00-00A-312A-D of PW EMM, Issue No. 017, dated March 19, 2021, describes procedures for performing a BSI of the LPC.
The FAA estimates that this AD affects 114 engines installed on airplanes of U.S. registry. The FAA estimates that five percent of engines installed on airplanes of U.S. registry will require EEC FADEC software upgrade and BSI of the LPC R1.
The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary inspection if certain Onboard Maintenance Message fault codes are displayed or if any necessary replacement is required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these replacements or inspections:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals.
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 has determined that 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 August 19, 2022.
This AD replaces AD 2021-14-06, Amendment 39-21633 (86 FR 36061, July 8, 2021).
This AD applies to Pratt & Whitney PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, PW1525G-3, PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by reports of in-flight shutdowns due to failure of the low-pressure compressor (LPC) rotor 1 (R1) and by subsequent findings of cracked LPC R1s during inspection. The FAA is issuing this AD to prevent failure of the LPC R1. The unsafe condition, if not addressed, could result in an uncontained release of the LPC R1, damage to the engine, damage to the airplane, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, and PW1525G-3 model turbofan engines with installed electronic engine control (EEC) full authority digital electronic control (FADEC) software earlier than EEC FADEC software version V2.11.10.4, before further flight, remove the EEC FADEC software and install EEC FADEC software version eligible for installation.
(2) For PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines with installed EEC FADEC software earlier than EEC FADEC software version V9.5.6.7, before further flight, remove the EEC FADEC software and install EEC FADEC software version eligible for installation.
(3) For the model turbofan engines identified in paragraphs (g)(1) and (g)(2) of this AD, before further flight, perform a one-time borescope inspection (BSI) of the LPC R1 for damage and cracks at the following LPC R1 locations:
(i) The blade tip;
(ii) The leading edge;
(iii) The leading edge fillet to rotor platform radius; and
(iv) The airfoil convex side root fillet to rotor platform radius.
(4) Based on the results of the BSI required by paragraph (g)(3) of this AD, before further flight, remove and replace the LPC R1 if:
(i) There is damage on an LPC R1 that exceeds serviceable limits; or
(ii) Any crack in the LPC R1 exists.
(5) For PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, and PW1525G-3 model turbofan engines with EEC FADEC software version V2.11.10.4 or later installed, within 15 flight cycles after receipt of Onboard Maintenance Message fault code 7100F0029 or 7100F0030, perform a BSI of the LPC R1 for damage and cracks at the locations specified in paragraph (g)(3) of this AD if the fault code is displayed on the Active Failure Messages and meets the following criteria:
(i) N1 Exceedance is above 95.2%;
(ii) N1 Exceedance occurred above 29,100 feet;
(iii) N1 Exceedance occurs for a duration of 40 seconds (15 seconds of cockpit display) or more during any flight; and
(iv) Compressor intermediate case (CIC) assembly installed has part number (P/N) 5379926, P/N 5379940, P/N 5379946, or P/N 5379926-001.
(6) Based on the results of the BSI required by paragraph (g)(5) of this AD, before further flight, remove and replace the LPC R1 if:
(i) There is damage on an LPC R1 that exceeds serviceable limits; or
(ii) Any crack in the LPC R1 exists.
(7) For all affected model turbofan engines, at the next engine shop visit after the effective date of this AD, remove CIC assembly with P/N 5379926, P/N 5379940, P/N 5379946, or P/N 5379926-001 and replace with a CIC assembly eligible for installation.
(8) For PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, and PW1525G-3 model turbofan engines with installed EEC FADEC software version V2.11.10.4, at the next engine shop visit after the effective date of this AD, remove the EEC FADEC software and install EEC FADEC software version eligible for installation.
(9) For PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines with installed EEC FADEC software version V9.5.6.7, at the next engine shop visit after the effective date of this AD, remove the EEC FADEC software and install EEC FADEC software version eligible for installation.
(1) For the purpose of this AD, “EEC FADEC software version eligible for installation” is EEC FADEC software version V2.11.12.1 or later for PW1519G, PW1521G, PW1521G-3, PW1521GA, PW1524G, PW1524G-3, PW1525G, and PW1525G-3 model turbofan engines, and EEC FADEC software version V9.6.5.6 or later for PW1919G, PW1921G, PW1922G, PW1923G, and PW1923G-A model turbofan engines.
(2) For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of the LPC Flange 1 or separation of the LPC Flange 4, except for the following situations, which do not constitute an engine shop visit.
(i) Separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance.
(ii) Separation of engine flanges solely for the purpose of replacing the fan without subsequent maintenance.
(3) For the purpose of this AD, a “CIC assembly eligible for installation” is any CIC assembly that does not have P/N 5379926, P/N 5379940, P/N 5379946, or P/N 5379926-001.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD and email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Mark Taylor, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7229; email:
(2) For service information identified in this AD, contact Pratt & Whitney, 400 Main Street, East Hartford, CT 06118; phone: (800) 565-0140; email:
(3) You may view this referenced service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
None.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. This AD was prompted by reports that some oxygen box assemblies had their piston ejected during the mask deployment test. This AD requires a one-time inspection of each passenger oxygen box dual manifold assembly to find and replace affected parts. This AD also prohibits installing affected parts. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 19, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 19, 2022.
For service information identified in this final rule, contact Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; email
You may examine the AD docket on the internet at
Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services 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-2021-30, dated September 7, 2021 (TCCA AD CF-2021-30) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. You may examine the MCAI in the AD docket at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the
The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA reviewed the relevant data 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. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.
Bombardier, Inc., has issued the following service information.
• Service Bulletin 700-35-5004, Revision 02, dated August 27, 2021.
• Service Bulletin 700-35-5502, dated August 27, 2021.
• Service Bulletin 700-35-6004, Revision 05, dated August 27, 2021.
• Service Bulletin 700-35-6502, dated August 27, 2021.
This service information describes procedures for inspecting each passenger oxygen box dual manifold assembly to find affected parts, and replacing affected parts. These documents are distinct because they
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
The FAA estimates that this AD affects 308 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 on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
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 August 19, 2022.
None.
This AD applies to all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 35, Oxygen.
This AD was prompted by reports that some passenger oxygen box dual manifold had their piston ejected during the mask deployment test due to a non-conformity in manufacturing. The FAA is issuing this AD to address a possible in-service piston ejection when used for emergency descent, smoke, or fire that may result in a high rate of oxygen leakage, which could prematurely deplete the oxygen for all passengers.
Comply with this AD within the compliance times specified, unless already done.
An affected part is a passenger oxygen box assembly having a dual manifold assembly having part number 100-009-39 and a lot and serial number specified in figure 1 to paragraph (g) of this AD.
Within the applicable compliance time specified in paragraph (h)(1) or (2) of this AD: Inspect each passenger oxygen box dual manifold assembly to determine if it is an affected part, as defined in paragraph (g) of this AD, and replace any affected part in accordance with paragraph 2.B. of the Accomplishment Instructions of the applicable Bombardier service bulletin specified in figure 2 to paragraph (h) of this AD. Replace any affected part before further flight.
(1) For airplanes having serial numbers 9771, 9779, 9784, 9788 through 9824 inclusive, 9853 through 9857 inclusive, and 9859 through 9876 inclusive, within 4 months after the effective date of this AD.
(2) For airplane having serial numbers 9877 through 9879 inclusive, and 60001 through 60042 inclusive, within 30 months after the effective date of this AD.
As of the effective date of this AD, no person may install an affected part as defined in paragraph (g) of this AD, on any airplane.
This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (j)(1) through (7) of this AD, as applicable.
(1) Bombardier Service Bulletin 700-35-5004, dated December 10, 2018.
(2) Bombardier Service Bulletin 700-35-5004, Revision 01, dated November 29, 2019.
(3) Bombardier Service Bulletin 700-35-6004, dated December 10, 2018.
(4) Bombardier Service Bulletin 700-35-6004, Revision 01, dated January 16, 2019.
(5) Bombardier Service Bulletin 700-35-6004, Revision 02, dated April 5, 2019.
(6) Bombardier Service Bulletin 700-35-6004, Revision 03, dated May 31, 2019.
(7) Bombardier Service Bulletin 700-35-6004, Revision 04, dated November 29, 2019.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2021-30, dated September 7, 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 Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(4) and (5) of this AD.
(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 this AD specifies otherwise.
(i) Bombardier Service Bulletin 700-35-5004, Revision 02, dated August 27, 2021.
(ii) Bombardier Service Bulletin 700-35-5502, dated August 27, 2021.
(iii) Bombardier Service Bulletin 700-35-6004, Revision 05, dated August 27, 2021.
(iv) Bombardier Service Bulletin 700-35-6502, dated August 27, 2021.
(3) For service information identified in this AD, contact Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; email
(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, email
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2018-13-08, which applied to certain Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. AD 2018-13-08 required repetitive inspections for cracking of the radius of the front spar vertical stringers and the horizontal floor beam on frame (FR) 36, repetitive inspections for cracking of the fastener holes of the front spar vertical stringers on FR 36, and repair if necessary, and, for certain airplanes, a potential terminating action modification of the center wing box area. This AD was prompted by a determination that additional airplanes are subject to the unsafe condition. This AD revises the applicability by adding airplanes and retains the requirements of AD 2018-13-08; as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 19, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 19, 2022.
For material 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
Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone 206-231-3229; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0241, dated November 8, 2021 (EASA AD 2021-0241) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. Model A320-215 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.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-13-08,
The FAA is issuing this AD to address fatigue cracking of the front spar vertical stringers on the wings, which, if not corrected, could result in the reduced structural integrity of the airplane. See the MCAI for additional background information.
The FAA received a comment from United Airlines who supported the NPRM without change.
The FAA reviewed the relevant data, considered the comment 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. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.
EASA AD 2021-0241 describes procedures for repetitive special detailed inspections for cracking of the radius of the front spar vertical stringers, horizontal floor beam radius and fastener holes of the front spear vertical stringers on frame 36. EASA AD 2021-0241 further describes procedures for repetitive high frequency eddy current (HFEC) inspections for cracking of the horizontal floor beam, repetitive HFEC inspections for cracking of the fastener holes of the front spar vertical stringers on FR 36, repetitive rototest inspections of the fastener holes of the spar vertical stringers, and repair. EASA AD 2021-0241 also describes procedures for the modification of the center wing box area. The modification is required for airplanes in configuration 1, 2 or 3; and for airplanes in configuration 5, 6, or 7, the modification is optional and is a terminating action for the repetitive inspections when done within a specified time frame. The modification includes related investigative and corrective actions. Related investigative actions include an HFEC inspection on the radius of the rib flanges, a rototest inspection of the fastener holes, detailed and HFEC inspections for cracking on the cut edges, detailed and rototest inspections on all open fastener holes, and an inspection to determine if secondary structure brackets are installed. Corrective actions include reworking the secondary structure bracket and repair. 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
The FAA estimates that this AD affects 1,549 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this 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.
This AD will not have federalism implications under Executive Order
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 August 19, 2022.
This AD replaces AD 2018-13-08, Amendment 39-19320 (83 FR 33809, July 18, 2018) (AD 2018-13-08).
This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) through (4) of this AD, certificated in any category, as identified in European Union Aviation Safety Agency (EASA) AD 2021-0241, dated November 8, 2021 (EASA AD 2021-0241).
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a report that, during a center fuselage certification full-scale fatigue test, cracks were found on the front spar vertical stringer at a certain frame. This AD was also prompted by a determination that Model A321 airplanes that have incorporated modification 160021 are also subject to the unsafe condition. The FAA is issuing this AD to address fatigue cracking of the front spar vertical stringers on the wings, which, if not corrected, could result in the reduced 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 2021-0241.
(1) Where EASA AD 2021-0241 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2021-0241 does not apply to this AD.
(3) Where paragraph (3) of EASA AD 2021-0241 specifies actions for airplanes repaired “in accordance with instructions approved by EASA or approved under Airbus DOA,” for this AD use “using a method approved by the Manager, Large Aircraft Section, International Validation Branch, FAA; or EASA; or Airbus SAS's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.”
(4) Where paragraph (4) of EASA AD 2021-0241 specifies to “contact Airbus for approved corrective action instructions and accomplish those instructions accordingly” if cracks 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 SAS's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.
(5) Where paragraph (8) of EASA AD 2021-0241 specifies actions for airplanes inspected by additional instructions “approved before the effective date of this AD by Airbus DOA,” for this AD use “approved before the effective date of this AD by the Manager, Large Aircraft Section, International Validation Branch, FAA; or EASA; or Airbus SAS's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.”
Although the service information referenced in EASA AD 2021-0241 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(ii) AMOCs approved previously for AD 2018-13-08 are approved as AMOCs for the corresponding provisions of EASA AD 2021-0241 that are required by paragraph (g) of this AD.
(2)
(3)
For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone 206-231-3229; 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 this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0241, dated November 8, 2021.
(ii) [Reserved]
(3) For EASA AD 2021-0241, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material 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 material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 19, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 19, 2022.
For material 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
Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3225; email:
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0258, dated November 17, 2021 (EASA AD 2021-0258) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A300-600 series airplanes.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The NPRM published in the
The FAA is issuing this AD to prevent reduced structural integrity of the airplane. See the MCAI for additional background information.
EASA previously issued EASA AD 2019-0090, dated April 26, 2019 (EASA AD 2019-0090), requiring the actions described in the Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 03, dated December 14, 2018, which also includes the limit of validity (LOV) for the Model A300-600 airplanes. EASA AD 2019-0090 corresponds to FAA AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01). Since that EASA AD was issued, Airbus published the Variation, as defined in EASA AD 2021-0258, which reduces the LOV for Model A300-600 airplanes, reflecting the engineering data that supports the structural maintenance program and that corresponds to the period of time during which it is demonstrated that Widespread Fatigue Damage will not occur. EASA AD 2021-0258 does not supersede EASA AD 2019-0090, but does specify that it invalidates the LOV as specified in the Airbus A300-600 ALS, Part 2. Therefore, this AD would replace the LOVs specified in Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 03, dated December 14, 2018, as required by FAA AD 2019-21-01.
For the reason described above, this AD requires compliance with the reduced LOV as specified in the variation.
The FAA received comments from the Air Line Pilots Association, International (ALPA) and FedEx who supported the NPRM without change.
The FAA reviewed the relevant data, considered the 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
EASA AD 2021-0258 describes new or more restrictive airworthiness limitations for airplane LOVs. 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
The FAA estimates that this AD affects 110 airplanes of U.S. registry. The FAA estimates the following costs to comply with this 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 agency 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.
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 August 19, 2022.
This AD affects AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01).
This AD applies to all Airbus SAS Model A300 B4-601, B4-603, B4-620, B4-622 B4-605R, B4-622R, C4-605R Variant F, F4-605R, and F4-622R airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to prevent reduced 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, European Union Aviation Safety Agency (EASA) AD 2021-0258, dated November 17, 2021 (EASA AD 2021-0258).
(1) Where EASA AD 2021-0258 refers to its effective date, this AD requires using the effective date of this AD.
(2) Where paragraph (1) of EASA AD 2021-0258 specifies “This AD invalidates the LOV [limit of validity] as specified in Airbus A300-600 ALS Part 2 Revision 03 [EASA AD 2019-0090],” this AD replaces the LOVs specified in paragraph 3.1 of Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 03, dated December 14, 2018, as required by FAA AD 2019-21-01.
(3) Paragraph (2) of EASA AD 2021-0258 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.
(4) The “Remarks” section of EASA AD 2021-0258 does not apply to this AD.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3225; email:
(1) The Director of the Federal Register approved the incorporation by reference 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 this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0258, dated November 17, 2021.
(ii) [Reserved]
(3) For EASA AD 2021-0258, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material 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 material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Mexia, TX. The FAA is taking this action due to an airspace review conducted as part of the decommissioning of the Mexia non-directional beacon (NDB). The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database.
Effective 0901 UTC, November 3, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Mexia-Limestone County Airport, Mexia, TX, to support instrument flight rule operations at this airport.
The FAA published a notice of proposed rulemaking in the
Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11F.
This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
This amendment to 14 CFR 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile (increased from a 6.4-mile) radius at Mexia-Limestone County Airport, Mexia, TX; removes the Mexia RBN and the associated extension from the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.
This action is the result of an airspace review conducted as part of the decommissioning of the Mexia NDB which provided navigation information for the instrument procedures at this airport.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending from 700 feet above the surface within a 6.5-mile radius of Mexia-Limestone County Airport.
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce special local regulations for the Seattle Seafair Unlimited Hydroplane Race on Thursday August 4, 2022, from 10 a.m. to 4 p.m. and Friday and Saturday, August 5 and 6, 2022, from 8 a.m. to 5 p.m. to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Thirteenth Coast Guard District identifies the regulated area for this event on Lake Washington, WA. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
The regulations in 33 CFR 100.1301 will be enforced Thursday, August 4, 2022, from 10 a.m. to 4 p.m., and Friday and Saturday, August 5 and 6, 2022, from 8 a.m. to 5 p.m.
If you have questions about this notification of enforcement, call or email Lieutenant Peter J. McAndrew, Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206-217-6051, email
The Coast Guard will enforce special local regulations in 33 CFR 100.1301 for the Seattle Seafair Unlimited Hydroplane Race on Thursday August 4, 2022, from 10 a.m. to 4 p.m., and Friday and Saturday, August 5 and 6, 2022, from 8 a.m. to 5 p.m. This action is being taken to provide for the safety of life on navigable waterways during this three-day event. Our regulation for marine events within the Thirteenth Coast Guard District, § 100.1301(b), specifies the location of the regulated area for the Seattle Seafair Unlimited Hydroplane Race which encompasses portions of Lake Washington. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).
The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Coast Guard Auxiliary vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the race course and in the adjoining waters during the periods this regulation is subject to enforcement. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.
Only vessels authorized by the Patrol Commander may be allowed to enter Zone I during the hours this regulation is subject to enforcement. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by Coast Guard Officers or Petty Officers.
During the times stated, the Coast Guard will enforce § 100.1301(f) through (m) as follows:
(1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the race course. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within 10 feet of the log boom.
(2) Any person swimming or otherwise entering the water in Zone II shall remain within 10 feet of a vessel.
(3) Rafting to a log boom will be limited to groups of three vessels.
(4) Up to six vessels may raft together in Zone II if none of the vessels are secured to a log boom.
(5) Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.
(6) Vessels proceeding in either Zone I or Zone II during the hours this regulation is subject to enforcement shall do so only at speeds, which will create minimum wake, seven miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.
(7) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.
(8) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both.
The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
In addition to this notification of enforcement in the
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 140-yard radius of the Eastern tip of Navy Point Road. The safety zone is necessary to restrict usage by persons and vessels to protect personnel, vessels, and the marine environment from potential hazards created by a fireworks display. Entry of vessels or persons into this safety zone is prohibited unless specifically authorized by the Captain of the Port Buffalo.
This rule is effective from 9:30 p.m. through 10:30 p.m. on July, 16, 2022.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LTJG William Kelley, Chief of Waterways Management Sector Buffalo, U.S. Coast Guard; telephone 716-843-9322, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. This safety zone must be established by July 16, 2022, in order to protect the public and vessels from the hazards associated with a fireworks display with an expected fall-out area over the water.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) Buffalo has determined that potential hazards associated with the fireworks display occurring on July 16, 2022, will be a safety concern for anyone within a 140-yard radius of the launch site. This rule is necessary to protect personnel, vessels, and the marine environment in the navigable waters within a 140-yard radius of the fireworks launch site before, during, and immediately after the scheduled event.
This rule establishes a safety zone from 9:30 p.m. through 10:30 p.m. on July 16, 2022. The safety zone will cover all navigable waters within 140 yards of Navy Point, Sackets Harbor, NY. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the scheduled fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP Buffalo or his designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of Black River Bay for approximately 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zone, and the rule would allow vessels to seek permission to enter the safety zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1 hour that will prohibit entry within 140 yards of Navy Point Road. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or his representative by telephone at 716-843-9322. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or his designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Maricopa County Air Quality Department (MCAQD) portion of the Arizona State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOC). We are approving rescissions of local rules that regulate these emission sources under the Clean Air Act (CAA or the Act).
This rule is effective August 15, 2022.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0748. All documents in the docket are listed on the
La Kenya Evans, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
On February 10, 2022 (87 FR 7784), the EPA proposed to approve the following rule rescissions into the Arizona SIP.
We proposed to approve the rescission of these rules because we determined that the rescissions comply with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.
The EPA's proposed action provided a 30-day public comment period. During this period, we received one comment from the City of Phoenix in support of the EPA's February 10, 2022 proposed action to rescind the proposed rules from the Arizona's SIP. We acknowledge the comment, and we are approving the rescissions of these rules from the SIP. We also received one anonymous comment which we respond to below.
As we stated in the Technical Support Document (TSD) to our proposal,
The SIP recissions from our February 10, 2022 proposed rule fall into four categories: (1) nine provisions that do not establish emission limits, enforce the NAAQS, or improve or impact the stringency of other measures in the SIP; (2) two provisions related to a source category subject to a control techniques guideline (CTG) document, for which the State submitted and the EPA approved a negative declaration stating that there are no sources in the nonattainment area covered by that CTG; (3) two provisions that have been superseded by newer SIP-approved rules; and (4) one provision that is not enforceable. Further explanation on the EPA's rationale for the proposed approval is provided below.
For the first category, Rule 27, Rule 32 sections A, C, D, and Rule 34 section E do not contain specific emissions limits or other elements necessary for enforcement. For example, Rule 32 section C states:
Materials including, but not limited to, solvents or other volatile compounds, paints, acids, alkalies, pesticides, fertilizer and manure shall be processed, stored, used and transported in such a manner and by such means that they will not unreasonably evaporate, leak, escape or be otherwise discharged into the ambient air so as to cause or contribute to air pollution; and where means are available to reduce effectively the contribution to air pollution from evaporation, leakage or discharge, the installation and use of such control methods, devices or equipment shall be mandatory.
This provision contains no specific work practice, emission limitation, or enforcement mechanism that would result in the reduction of emissions. Therefore, the EPA has concluded, based on a CAA section 110(l) analysis, that removal of this provision would not interfere with Maricopa County's progress toward attainment, reasonable further progress (RFP), or any other applicable CAA requirement.
Additionally, Rule 32 sections B and E, Rule 34 section D.1, and Rule 81 do not regulate categories of emissions related to any NAAQS, and thus do not contribute to Maricopa County's attainment of the NAAQS. For example, Rule 34 section D.1 regulates the emission of perchloroethylene. In 1996, the EPA deleted perchloroethylene from the definition of VOC on the basis that the chemical has negligible photochemical reactivity.
For the second category, Rule 34 section L and Rule 340 contain similar requirements for the regulation of cutback asphalt, which is a source category subject to the CTG EPA-450/2-77-037 “Cutback Asphalt.” When there are no existing sources in a nonattainment area covered by a particular CTG document, or no major non-CTG sources of NOx or VOC, states may, in lieu of adopting RACT requirements for those sources, adopt negative declarations certifying that there are no such sources in the relevant nonattainment area. The State submitted, and the EPA approved, a negative declaration in Maricopa County on January 7, 2021, (86 FR 971) for cutback asphalt. This negative declaration applies to both Rule 34 section L and Rule 340. Therefore, the EPA has concluded, based on a 110(l) analysis, that because there are no sources of emissions being regulated by Rule 34 section L and Rule 340 in the nonattainment area, removal of these provisions will not interfere with Maricopa County's progress towards attainment or any other applicable CAA requirement.
For the third category, Rule 32 section F and Rule 34 section A were both superseded by subsequent SIP submissions from Maricopa County. Rule 32 section F was superseded by SIP Rule 510, “Air Quality Standards” (86 FR 54628, October 04, 2021), and Rule 34 section A was superseded by an updated definition for VOC in the SIP, Maricopa Rule 100, “General Provisions and Definitions” (84 FR 13543, April 5, 2019). We conclude that the actions approving Rule 100 and Rule 510 into the SIP are adequate to ensure the removal of Rule 32 section F and Rule 34 section A would not interfere with Maricopa County's progress towards attainment, RFP, or any other applicable CAA requirement.
For the fourth category, there are no test methods that apply to the regulation in Rule 34 section E.1, which requires surface coating operations to utilize an “enclosed area designed to contain not less than ninety-six percent (96%) by weight of the overspray.” Without a test method that can determine if a spray enclosure can capture 96% of the overspray, the provision is unenforceable and has no impact on the air quality in Maricopa County. The EPA finds that the provision's removal would therefore not interfere with
The provisions proposed to be rescinded from the Arizona SIP generally do not achieve emission reductions or are already codified elsewhere in the SIP. The removal of these rules would not impact the overall stringency of the Arizona SIP, and as a result, the approval of this rule action will allow Maricopa to maintain rules in the SIP that implement, maintain, and enforce the NAAQS.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations.
No comments were submitted that change our assessment of the rule recissions as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rule recissions into the Arizona SIP. The rule recissions will remove the previously approved Rule 27, Rule 32 sections A (all subsections), B, C, D, E, and F; Rule 34 sections A, D.1, E.1, E.3 and L (all subsections); Rule 81; and Rule 340 from the SIP.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. The EPA is also finalizing deletion of rules that were previously incorporated by reference from the applicable Arizona SIP. In accordance with requirements of 1 CFR 51.5, as discussed in Sections I, II and III of this preamble, the EPA is finalizing the incorporation by reference for the rescission of the Arizona rules described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by the EPA for removal from the SIP and will be incorporated by reference in the next update to the SIP compilation.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the 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 the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 13, 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, Intergovernmental relations, Nitrogen Oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur Oxides, Volatile organic compounds.
For the reasons stated in the preamble, EPA amends part 52, chapter I, Title 40 of the Code of Federal Regulations as follows:
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
This regulation amends tolerances for residues of benoxacor in or on field corn, popcorn, and sweet corn commodities when used as an inert ingredient (herbicide safener) in pesticide formulations. Management Contract Service, Inc., on behalf of Landis International, submitted a petition requesting this tolerance amendment under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective July 15, 2022. Objections and requests for hearings must be received on or before September 13, 2022 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2021-0185, is available at
Marietta Echeverria, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1030; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0185 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before September 13, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0185, by one of the following methods.
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to benoxacor, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with benoxacor follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Benoxacor has low acute toxicity via the oral, dermal, and inhalation routes. It is not a skin irritant, but it is a moderate eye irritant and a skin sensitizer. In repeated-dose toxicity studies, the kidneys, liver, and stomach are the major target organs. There is no evidence of susceptibility in the available developmental and reproduction toxicity studies. No adverse maternal or developmental effects were found in the developmental toxicity study in rabbits and the offspring effects observed in the developmental and reproduction toxicity studies in rats occurred at the same doses at which maternal toxicity was observed. Negative results were observed in mutagenicity and genotoxicity studies with benoxacor. Although stomach tumors were observed in mice and rats, these results were considered equivocal and to be of little or no relevance to humans. Consequently, EPA described the carcinogenic potential of benoxacor as “cannot be determined but suggestive”, based on the 1996 Proposed Guidelines for Carcinogenic Risk Assessment, which can be found here
Once a pesticide's toxicological profile is determined, EPA identifies points of departure (PODs) and levels of concern (LOCs) to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for benoxacor used for human risk assessment is shown in Table 1 of this unit.
1.
i.
EPA conducted an unrefined acute dietary (food only) exposure assessment for the proposed uses of benoxacor. Food residues for all commodities were assumed to be at the tolerance level for 100% of crops treated; that is, a value of 0.01 ppm was assumed for all commodities upon which a tolerance has been established for metolachlor or S-metolachlor. Results of the acute dietary assessment indicate that the general U.S. population and all other population subgroups have exposure and risk estimates below EPA's level of concern (LOC).
ii.
EPA conducted an unrefined chronic dietary (food only) exposure assessment for the proposed uses of benoxacor. Food residues for all commodities were assumed to be at the tolerance level for 100% of crops treated; that is, a value of 0.01 ppm was assumed for all commodities upon which a tolerance has been established for metolachlor or S-metolachlor.
iii.
iv.
2.
3.
4.
EPA has not found benoxacor to share a common mechanism of toxicity with any other substances, and benoxacor does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that benoxacor does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
1.
2.
3.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
4.
5.
6.
Adequate enforcement methodology (gas chromatography with nitrogen phosphorous detection (GC/NPD)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). Codex is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for benoxacor.
After submitting its original petition seeking tolerances of 0.01 ppm on all commodities on which any herbicidal formulations may be used, the petitioner revised its request to tolerances for residues of benoxacor on only field corn, popcorn, and sweet corn commodities when benoxacor is used in any herbicidal formulation. The available residue data was limited to corn commodities, and because residues may differ between commodities, there was not sufficient data to support extending the benoxacor tolerances beyond corn commodities.
Taking into consideration all available information on benoxacor, EPA has determined that there is a reasonable certainty that no harm to the general population or any population subgroup, including infants and children, will result from aggregate exposure to benoxacor residues. Therefore, tolerances are established for residues of benoxacor, including its metabolites and degradates, in or on corn, field, forage; corn, field, grain; corn, field, stover; corn, pop, grain; corn, pop, stover; corn, sweet, forage; corn, sweet, kernel plus cob with husks removed; and corn, sweet, stover at 0.01 ppm. Compliance with the tolerances is to be determined by measuring only benoxacor (4-(dichloroacetyl)-3,4-dihydro-3-methyl-2
This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) Tolerances are established for residues of benoxacor, including its metabolites and degradates, in or on the commodities in the following table, when used as an inert ingredient (herbicide safener) in pesticide formulations. Compliance with the tolerance levels specified in the following table is to be determined by measuring only benoxacor (4-(dichloroacetyl)-3,4-dihydro-3-methyl-2
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of tribenuron methyl in or on multiple commodities that are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food Drug and Cosmetic Act (FFDCA).
This regulation is effective July 15, 2022. Objections and request for hearings must be received on or before September 13, 2022, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2021-0388, is available online at
Marietta Echeverria, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1030; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0388 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before September 13, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0388, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA is modifying many of the commodity definitions to be consistent with Agency nomenclature. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for tribenuron methyl including exposure resulting from the tolerances established by this action. EPA's assessment of exposure and risk associated with tribenuron methyl follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Changes in body weights and organ weights were the most commonly observed effects in toxicity studies with tribenuron methyl. A particular target organ was not identified. Effects in subchronic oral studies were limited to body weight and organ weight changes, while chronic exposure resulted in more severe effects on the pancreas, spleen, kidneys, and reproductive organs. In developmental and reproduction toxicity studies, developmental/reproductive effects were observed in the presence of comparable maternal/parental toxicity; therefore, there is no concern for pre- and/or postnatal susceptibility.
Tribenuron methyl is classified as a Group C “Possible Human Carcinogen” due to the observation of mammary gland adenocarcinomas in females in the chronic rat study. The point of departure (POD) for establishing the chronic reference dose (RfD) (0.8 mg/kg/day) is 95-fold lower than the lowest dose at which tumors were observed (76 mg/kg/day) and is therefore considered protective of any potential carcinogenicity. Based on the Agency's current practices, a quantitative cancer assessment was not conducted.
Specific information on the studies received and the nature of the adverse effects caused by tribenuron methyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints and PODs for tribenuron methyl used for human risk assessment can be found in the Tribenuron Methyl Human Health Risk Assessment on pages 24-26.
1.
i.
In conducting the acute dietary exposure assessment, EPA used the 2005-2010 food consumption data from the U.S. Department of Agriculture's (USDA) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). The acute dietary exposure assessment assumes tolerance-level residues and 100% crop treated (100 PCT) for all commodities and incorporates default processing factors.
ii.
iii.
iv.
2.
Based on the Pesticide Root Zone Model for Groundwater (PRZM-GW; v.1.07), the estimated drinking water concentrations (EDWCs) of tribenuron methyl are 35 ppb for acute dietary exposures and 23 ppb for chronic dietary exposures. These modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
3.
4.
1.
2.
3.
i. The toxicology database for tribenuron methyl is complete and adequate for FQPA evaluation. Studies available to inform the FQPA SF include developmental studies in rats and rabbits, a two-generation reproduction study in rats, and acute and subchronic neurotoxicity studies in rats.
ii. There is no concern for neurotoxicity. The only effects suggestive of neurotoxicity were transient changes in motor activity and rearing behavior observed at the limit dose in the acute neurotoxicity study; however, these effects are considered secondary to systemic effects observed in the study and are therefore not of concern. A developmental neurotoxicity study is not required.
iii. No evidence of increased quantitative or qualitative susceptibility was seen in rat and rabbit developmental toxicity and rat reproduction studies; fetal/offspring effects were observed in the presence of comparable maternal/parental toxicity, and the PODs selected for risk assessment are protective of these effects.
iv. Exposure to tribenuron methyl will not be underestimated due to the conservative nature of the dietary exposure assessments (tolerance-level residues, high end drinking water estimates, and 100% crop treated assumptions). There are no residential uses.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
4.
5.
Adequate enforcement methodology (high-performance liquid chromatography with photo-conductivity detection (HPLC/PC) method, Method AMR 337-85 (Revision A)), is available to enforce the tolerances for residues of tribenuron methyl in forage, grain and straw commodities. To enforce tolerances for residues of tribenuron methyl in canola, corn grain, cotton, flax, sorghum grain, and soybean seed commodities, a liquid chromatography with mass-spectrometric detection (LC/MS) method, DuPont Method 1381 is available to enforce the tolerance expression. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). There are no Codex MRLs for residues of tribenuron methyl.
Commodity definitions were revised to be consistent with EPA's commodity vocabulary. Revisions were made for many of the individual commodities in the proposed subgroups 6-XXE: Dried shelled bean, except soybean subgroup and 6-XXF: Dried shelled pea subgroup, respectively. Additionally, commodity definitions were revised for the cram-cram and princess-feather commodities.
Therefore, tolerances are established for residues of tribenuron methyl in or on the following commodities: Amaranth, grain, forage at 0.3 ppm; Amaranth, grain, grain at 0.05 ppm; Amaranth, grain, hay at 0.5 ppm; Amaranth, grain, straw at 0.1 ppm; Amaranth, purple, forage at 0.3 ppm; Amaranth, purple, grain at 0.05 ppm; Amaranth, purple, hay at 0.5 ppm; Amaranth, purple, straw at 0.1 ppm; Bean, adzuki, dry seed at 0.01 ppm; Bean, American potato, dry seed at 0.01 ppm; Bean, asparagus, dry seed at 0.01 ppm; Bean, black, dry seed at 0.01 ppm; Bean, broad, dry seed at 0.01 ppm; Bean, catjang, dry seed at 0.01 ppm; Bean, cranberry, dry seed at 0.01 ppm; Bean, dry, dry seed at 0.01 ppm; Bean, field, dry seed at 0.01 ppm; Bean, French, dry seed at 0.01 ppm; Bean, garden, dry seed at 0.01 ppm; Bean, goa, dry seed at 0.01 ppm; Bean, great northern, dry seed at 0.01 ppm; Bean, green, dry seed at 0.01 ppm; Bean, guar, dry seed at 0.01 ppm; Bean, kidney, dry seed at 0.01 ppm; Bean, lablab, dry seed at 0.01 ppm; Bean, lima, dry seed at 0.01 ppm; Bean, morama, dry seed at 0.01 ppm; Bean, moth, dry seed at 0.01 ppm; Bean, mung, dry seed at 0.01 ppm; Bean, navy, dry seed at 0.01 ppm; Bean, pink, dry seed at 0.01 ppm; Bean, pinto, dry seed at 0.01 ppm; Bean, red, dry seed at 0.01 ppm; Bean, rice, dry seed at 0.01 ppm; Bean, scarlet runner, dry seed at 0.01 ppm; Bean, sword, dry seed at 0.01 ppm; Bean, tepary, dry seed at 0.01 ppm; Bean, urd, dry seed at 0.01 ppm; Bean, yardlong, dry seed at 0.01 ppm; Bean, yellow, dry seed at 0.01 ppm; Buckwheat, grain at 0.05 ppm; Buckwheat, hay at 0.4 ppm; Buckwheat, straw at 0.1 ppm; Buckwheat, tartary, grain at 0.05 ppm; Buckwheat, tartary, hay at 0.4 ppm; Buckwheat, tartary, straw at 0.1 ppm; Canarygrass, annual, grain at 0.05 ppm; Canarygrass, annual, hay at 0.4 ppm; Canarygrass, annual, straw at 0.1 ppm; Cañihua, forage at 0.3 ppm; Cañihua, grain at 0.05 ppm; Cañihua, hay at 0.5 ppm; Cañihua, straw at 0.1 ppm; Chia, forage at 0.3 ppm; Chia, grain at 0.05 ppm; Chia, hay at 0.5 ppm; Chia, straw at 0.1 ppm; Chickpea, dry seed at 0.01 ppm; Cottonseed subgroup 20C at 0.02 ppm; Cowpea, dry seed at 0.01 ppm; Cram-cram, forage at 0.3 ppm; Cram-cram, grain at 0.05 ppm; Cram-cram, hay at 0.5 ppm; Cram-cram, straw at 0.1 ppm; Fonio, black, forage at 0.05 ppm; Fonio, black, grain at 0.05 ppm; Fonio, black, stover at 0.05 ppm; Fonio, white, forage at 0.05 ppm; Fonio, white, grain at 0.05 ppm; Fonio, white, stover at 0.05 ppm; Gram, horse, dry seed at 0.01 ppm; Huauzontle, grain, forage at 0.3 ppm; Huauzontle, grain, grain at 0.05 ppm; Huauzontle, grain, hay at 0.5 ppm; Huauzontle, grain, straw at 0.1 ppm; Inca wheat, forage at 0.3 ppm; Inca wheat, grain at 0.05 ppm; Inca wheat, hay at 0.5 ppm; Inca wheat, straw at 0.1 ppm; Jackbean, dry seed at 0.01 ppm; Job's tears, forage at 0.05 ppm; Job's tears, grain at 0.05 ppm; Job's tears, stover at 0.05 ppm; Lentil, dry seed at 0.01 ppm; Longbean, Chinese, dry seed at 0.01 ppm; Lupin, Andean, dry seed at 0.01 ppm; Lupin, blue, dry seed at 0.01 ppm; Lupin, grain, dry seed at 0.01 ppm; Lupin, sweet, dry seed at 0.01 ppm; Lupin, white, dry seed at 0.01 ppm; Lupin, white sweet, dry seed at 0.01 ppm; Lupin, yellow, dry seed at 0.01 ppm; Millet, barnyard, forage at 0.05 ppm; Millet, barnyard, grain at 0.05 ppm; Millet, barnyard, stover at 0.05 ppm; Millet, finger, forage at 0.05 ppm; Millet, finger, grain at 0.05 ppm; Millet, finger, stover at 0.05 ppm; Millet, foxtail, forage at 0.05 ppm; Millet, foxtail, grain at 0.05 ppm; Millet, foxtail, stover at 0.05 ppm; Millet, little, forage at 0.05 ppm; Millet, little, grain at 0.05 ppm; Millet, little, stover at 0.05 ppm; Millet, pearl, forage at 0.05 ppm; Millet, pearl, grain at 0.05 ppm; Millet, pearl, stover at 0.05 ppm; Millet, proso, forage at 0.05 ppm; Millet, proso, grain at 0.05 ppm; Millet, proso, stover at 0.05 ppm;
In addition, EPA is revising the tolerance for oat, hay from 0.05 ppm to 0.4 ppm to align with the hay tolerances for other cereal grain commodities established under 40 CFR 180.451 as requested by IR-4.
Finally, EPA is removing the established tolerances for residues of tribenuron methyl in or on the following individual raw agricultural commodities as they are redundant with the established crop subgroup tolerances being established in this rulemaking: Canola, seed at 0.02 ppm, Cotton, gin byproducts at 0.02 ppm, Cotton, undelinted seed at 0.02 ppm and Flax, seed at 0.02 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Children's Bureau, Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Correcting amendment.
The Department of Health and Human Services published an interim final rule in the
Effective on July 15, 2022.
Kathleen McHugh, Director, Policy Division, Children's Bureau,
The Department of Health and Human Services published an interim final rule in the
Adoption and foster care, Child welfare, Grant programs—social programs.
Accordingly, 45 CFR part 1356 is corrected by making the following correcting amendments:
42 U.S.C. 620
(a)
(i) Foster care maintenance payments as defined in section 475(4) of the Act, made in accordance with §§ 1356.20 through 1356.30, section 472 of the Act, and, for a Tribal title IV-E agency, section 479B of the Act; and
(ii) Adoption assistance payments made in accordance with §§ 1356.20 and 1356.40, applicable provisions of section 473, section 475(3), and, for a Tribal title IV-E agency, section 479B of the Act.
(2) Federal financial participation is available at the rate of the Federal medical assistance percentage as defined in section 1905(b), 474(a)(1) and (2), and 479B(d) of the Act as applicable, definitions, and pertinent regulations as promulgated by the Secretary, or the designee.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
This final rule upgrades NHTSA's safety standards addressing rear underride protection in crashes of passenger vehicles into trailers and semitrailers by adopting similar requirements to Transport Canada's standard for rear impact guards. Adopting these standards will require rear impact guards to provide sufficient strength and energy absorption to protect occupants of compact and subcompact passenger cars impacting the rear of trailers at 56 kilometers per hour (km/h) (35 miles per hour (mph)). Upgraded protection will be provided in crashes in which the passenger motor vehicle hits: the center of the rear of the trailer or semitrailer; and, in which 50 percent of the width of the passenger motor vehicle overlaps the rear of the trailer or semitrailer. This rulemaking commenced in response to petitions for rulemaking from the Insurance Institute for Highway Safety (IIHS) and from Ms. Marianne Karth and the Truck Safety Coalition (TSC). This final rule responds to and fulfills the rulemaking mandate of the November 2021 Bipartisan Infrastructure Law (BIL) that directs the Secretary to upgrade current Federal safety standards for rear impact guards. NHTSA is also issuing this final rule pursuant to DOT's January 2022 National Roadway Safety Strategy, which describes the five key objectives of the Department's Safe System Approach: safer people, safer roads, safer vehicles, safer speeds, and post-crash care. One of the key Departmental actions to enable safer vehicles is to issue a final rule to upgrade existing requirements for rear impact guards on newly manufactured trailers and semitrailers.
Petitions for reconsideration of this final rule must refer to the docket and notice number set forth above and be submitted to the Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590. All petitions received will be posted without change to
NHTSA is issuing this final rule to upgrade Federal Motor Vehicle Safety Standard (FMVSS) No. 223, “Rear impact guards,” and FMVSS No. 224, “Rear impact protection,” which together provide protection for occupants of passenger vehicles in crashes into the rear of trailers and semitrailers. FMVSS No. 223, an equipment standard, specifies strength and energy absorption requirements in quasi-static force tests of rear impact guards sold for installation on new trailers and semitrailers. FMVSS No. 224, a vehicle standard, requires new trailers and semitrailers with a gross vehicle weight rating (GVWR) of 4,536 kilogram (kg) (10,000 pounds (lb)) or more to be equipped with a rear impact guard meeting FMVSS No. 223.
Rear underride crashes occur when a passenger vehicle crashes into the rear end of a generally larger vehicle, and the front end of the passenger vehicle slides under (
Rear impact guards are mounted on the rear of trailers to prevent underride and PCI. In a collision between a passenger vehicle and the rear of a trailer equipped with a rear impact guard, the rear impact guard engages the striking passenger vehicle and prevents it from sliding too far under the struck vehicle's bed and chassis. FMVSS Nos. 223 and 224 ensure a rear impact guard is configured low and wide to impede a striking passenger vehicle, is strong enough to withstand a 48 km/h (30 mph) impact of the colliding vehicle, and has energy-absorbing capability to further mitigate harm to occupants in the striking vehicle.
NHTSA designed FMVSS No. 223 and 224 to work in conjunction with FMVSS No. 208, “Occupant crash protection,” so that occupants are protected with seat belts and air bags in the underride crash—thus maximizing the likelihood of avoiding serious or fatal injury in the impact into the guard. When FMVSS Nos. 223 and 224 were issued in 1996, FMVSS No. 208 required passenger cars to provide crash protection in a 48 km/h (30 mph) rigid barrier crash test. The agency designed the underride protection standards so that occupants would be reasonably protected in underride crashes up to 48 km/h (30 mph). Since then, FMVSS No. 208's test speed has been increased to provide high levels of occupant protection in a 56 km/h (35 mph) frontal crash.
With FMVSS No. 208 now providing crash protection up to 56 km/h (35 mph), NHTSA is amending FMVSS Nos. 223 and 224 to mandate the guards withstand crash velocities up to that speed. This final rule adopts requirements of Canada Motor Vehicle Safety Standard (CMVSS) No. 223, “Rear impact guards.”
This final rule is based on the best available science. The underlying field data used in the December 16, 2015 NPRM and this final rule are from a 2013 NHTSA-funded study conducted by the University of Michigan Transportation Research Institute (UMTRI) to supplement UMTRI's Trucks Involved in Fatal Accidents (TIFA) survey data for years 2008 and 2009. (The 2013 NHTSA-funded study is referred to in this preamble as the 2013 UMTRI Study.)
This final rule is issued under the National Traffic and Motor Vehicle Safety Act (Safety Act) (49 U.S.C. 30101
On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act (IIJA),
Section 23011(b)(1)(A) of BIL states that, not later than 1 year after the date of enactment of the Act, the Secretary shall promulgate regulations that revise FMVSS No. 223 and FMVSS No. 224 to require new trailers and semitrailers to be equipped with rear impact guards that are designed to prevent PCI from a trailer or semitrailer when a passenger vehicle traveling at 56 km/h (35 mph) makes an impact: (a) “in which the passenger motor vehicle impacts the center of the rear of the trailer or semitrailer” (full overlap with the rear of the trailer or semitrailer); (b) “in which 50 percent of the width of the passenger motor vehicle overlaps the rear of the trailer or semitrailer”; and (c) “in which 30 percent of the width of the passenger motor vehicle overlaps the rear of the trailer or semitrailer, if the Secretary determines that a revision of [FMVSS Nos. 223 and 224] to address such an impact would meet the requirements and considerations described in subsections (a) and (b) of section 30111 of title 49, United States Code” (
Section 23011(b)(2) of BIL directs the Secretary to conduct additional research on the design and development of rear impact guards that can: prevent PCI in cases in which the passenger motor vehicle is traveling at speeds of up to 65 mph; and that can protect occupants against severe injury in crashes of passenger vehicles into the rear of trailers and semitrailers at speeds up to 104.5 km/h (65 mph). Section 23011(b)(3) directs that, not later than 5 years after the date the regulations under Section 23011(b)(1)(A) are promulgated, the Secretary shall review and evaluate the need for changes to FMVSS No. 223 and FMVSS No. 224 in response to advancements in technology and update the standards accordingly.
Section 23011(c)(1)(A) of BIL directs the Secretary to complete, not later than 1 year after enactment of the Act, additional research on side underride guards to better understand the overall effectiveness of the guards. Section 23011(c)(1)(B) requires the Secretary to assess, among other matters, the feasibility, benefits, and costs of, and any impacts on intermodal equipment, freight mobility (including port operations), and freight capacity associated with, installing side underride guards on new trailers and semitrailers within one year of enactment of BIL, and if warranted, develop performance standards for side underride guards. Section 23011(c)(3) also directs the Secretary to publish the results of the side underride guard assessment specified in Section 23011(c)(1)(B) within 90 days of completion of the assessment and provide an opportunity for public comment. It also directs that, within 90 days from the date the comment period closes, the Secretary shall submit a report to Congress on the assessment results, a summary of comments received, and a determination whether the Secretary intends to develop performance requirements for side underride guards, including any analysis that led to that determination.
Section 23011(d) of BIL directs the Secretary to establish an advisory committee on underride protection to provide advice and recommendations to the Secretary on safety regulations to reduce underride crashes and fatalities relating to underride crashes. This section also provides details on the membership of the advisory committee, frequency of meetings of the advisory committee, the Secretary's support to the advisory committee, and details of a biennial report to Congress that the advisory committee is required to submit.
Section 23011(e) of BIL directs the Secretary to implement the recommendations on truck underride guard data collection issued by the Government Accountability Office
This final rule fulfills the BIL rulemaking mandate to NHTSA set forth in Section 23011(b). As directed by Sections 23011(b)(1)(A)(i) and (ii), this final rule revises FMVSS Nos. 223 and 224 to require trailers and semitrailers to be equipped with rear impact guards that prevent passenger compartment intrusion from a trailer or semitrailer when a passenger motor vehicle traveling at 35 miles per hour makes: (a) an impact in which the passenger motor vehicle impacts the center of the rear of the trailer or semitrailer; and (b) an impact in which 50 percent of the width of the passenger motor vehicle overlaps the rear of the trailer or semitrailer.
This final rule fulfills these BIL rulemaking mandates of Sections 23011(b)(1)(A)(i) and (ii) and achieves, effectively and expeditiously, the Congressional goal that focuses on improving rear impact guard performance. The 2015 NPRM proposed to adopt the Canadian quasi-static test requirements for rear impact guards, which ensure rear impact guards provide sufficient strength and energy absorption to protect occupants of compact and subcompact passenger cars impacting the rear of trailers at 56 km/h (35 mph).
NHTSA's work on this final rule also meets the BIL mandate in Section 23011(b)(1)(A)(iii). In developing this rule, the agency considered a requirement that rear impact guards withstand a 56 km/h (35 mph) crash of a passenger vehicle into the rear of a trailer in which only 30 percent of the width of the passenger motor vehicle overlaps the rear of the trailer or semitrailer (30 percent overlap crash). After analyzing the issue, we determined such a standard would not meet the requirements and considerations of Sections 30111(a) and (b) of the Safety Act. Our consideration of this matter is discussed below.
The provision at 49 U.S.C. 30111(a) of the Safety Act authorizes the Secretary (NHTSA, by delegation) to prescribe Federal motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. “Motor vehicle safety” is defined in the Safety Act as “the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes nonoperational safety of a motor vehicle.”
The provision at 49 U.S.C. 30111(b) specifies that, when prescribing such standards, the Secretary must, among other things, consider all relevant, available motor vehicle safety information, consider whether a standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed, and consider the extent to which the standard will further the statutory purpose of reducing traffic crashes and associated deaths and injuries. NHTSA has considered the factors in Section 30111(b) and concludes that available data do not show that a standard for a 30 percent overlap crash at 35 mph would be reasonable, practicable, or appropriate for
Rear impact guards are designed to absorb energy and prevent PCI by attaching to substantial structural elements of a trailer or semitrailer, such as the chassis longitudinal frame rails, by way of vertical support members. The vertical members of the rear impact guard usually attach to the longitudinal frame rails so that impact loads are directly transmitted to the frame rails with minimal or no damage to the overall trailer structure. The test results from the initial testing at IIHS reported in the NPRM show that in the 30 percent overlap crashes, only a small lateral portion of the rear impact guard (about 22 percent of the guard width) engaged with the front end of the passenger vehicle. This small lateral portion did not include a vertical support member of the guard, so when a Chevy Malibu test vehicle struck this small lateral portion of the guard, the guard deformed locally and did not prevent PCI. In these initial IIHS crash tests, only the Manac rear impact guard was able to prevent PCI in the Chevy Malibu in the 56 km/h (35 mph) full overlap, 50 percent overlap, and 30 percent overlap crash test conditions. NHTSA believes the Manac performed this way because, unlike most trailer designs where the vertical members of the rear impact guard attach directly to the longitudinal frame rails of the trailer, the vertical members of the Manac rear impact guard were located further outboard from the location of the trailer longitudinal frame rails and were attached to a reinforced floor section of the trailer.
While the more outboard vertical supports of the Manac guard could withstand the force from the 30 percent low overlap crash of the Malibu, data suggest the further outboard vertical supports may reduce guard strength near the center of the horizontal member of the rear impact guard. In the 56 km/h (35 mph) full overlap crash tests of the Malibu, the greatest amount of underride (1,350 mm) was in the test with the Manac trailer. (In contrast, the extent of the underride was 990 mm in the test with the Wabash trailer.) NHTSA found this observation critical because it indicated that trailers that have the main vertical supports for the guard more outboard may not perform as well in full overlap crashes as trailers
Further, data indicate that most fatal light vehicle crashes into the rear of trailers are at speeds much higher than 56 km/h (35 mph). The agency is concerned that adopting requirements to mitigate PCI in 30 percent low overlap crashes could result in rear impact guard designs that may reduce protection against PCI in higher speed crashes. NHTSA remains concerned about potential negative safety consequences if a final rule were to adopt requirements that result in moving the vertical members of rear impact guards more outward laterally to prevent underride in a 56 km/h (35 mph) 30 percent low overlap crash, at the expense of protection against higher speed crashes. The agency believes this issue should be more fully explored before possibly adopting a 30 percent low overlap requirement.
NHTSA has estimated the benefits and costs of adopting performance requirements to mitigate underride in low overlap (30 percent or lower overlap) crashes based on available information. We estimate 0.75 to 1.5 fatalities would be prevented annually if this rule included requirements to mitigate PCI in 30 percent overlap crashes at 56 km/h (35 mph) impact speed. (This estimate does not account for the possible dis-benefits in full and 50 percent offset crashes resulting from a low overlap requirement, discussed in the paragraph above.) The 0.75 to 1.5 fatalities prevented is based on an estimated 5.8—11.5 annual fatalities in low overlap crashes into the rear of trailers (crashes where 30 percent or less of the front end of the impacting vehicle overlaps the rear of the trailer) and a 13 percent effectiveness of rear impact guards with 30 percent overlap crash protection in mitigating fatalities.
To prevent PCI in 30 percent overlap crashes, designs would have to either: (a) add additional vertical members at the lateral edge of the rear impact guard that connect to the trailer's transverse floor beam and strengthen the transverse floor beam of the trailer to withstand the loads transmitted from these vertical members at the edge of the guard; or (b) considerably strengthen the rear impact guard member so it would not deform locally in the 30 percent overlap crash. Both these approaches would add significant weight to the vehicles because they involve adding more vertical members, strengthening the floor beams, or strengthening the guard itself. Additionally, some guard designs may have restrictions in intermodal operations at loading docks and may not be practicable for all types of trailers covered by FMVSS No. 224.
NHTSA is required by Section 1 of Executive Order 12866 to conduct a benefit-cost analysis of any intended regulation.
Using the estimate of 0.75 to 1.5 fatalities that would be prevented annually, the undiscounted cost per life saved using the minimum cost estimate ranges from $69 million to $151 million. The undiscounted cost per life saved using the average cost estimate ranges from $183 million to $215 million. The Department of Transportation has recently updated the value of a statistical life, consistent with Office of Management and Budget (OMB) Circular A-4, to $11.6 million.
For the above reasons, NHTSA has determined that requirements to mitigate PCI in a 30 percent overlap crash at 56 km/h (35 mph) would not meet the requirements of Section 30111(a) of the Safety Act. We have decided that an FMVSS that requires
However, while NHTSA cannot conclude that the data and science currently available for agency decision-making support mandating installation of a rear impact guard that prevents PCI in all three overlap conditions (full, 50 percent, and 30 percent overlap) on
In response to the research mandate in Section 23011(b)(2) of BIL, NHTSA is conducting additional research on the design and development of rear impact guards that can prevent underride and protect passengers in crashes into the rear of trailers at crash speeds up to 104.5 km/h (65 mph). As part of this research effort, NHTSA will also evaluate potential cost-effective rear impact guard designs that could improve protection in the less-frequent 30 percent low overlap crashes while
NHTSA is also working on implementing the other provisions of Section 23011 of BIL.
This final rule accords with DOT's January 2022 National Roadway Safety Strategy to address the rising numbers of transportation deaths occurring on the country's streets, roads, and highways.
This final rule accords with an April 3, 2014 recommendation from the National Transportation Safety Board (NTSB) regarding tractor-trailer safety (H-14-004). NTSB recommended that NHTSA revise FMVSS Nos. 223 and 224 to ensure that newly manufactured trailers over 4,536 kg (10,000 lb) GVWR provide adequate protection of passenger vehicle occupants from fatalities and serious injuries resulting from full-width and offset trailer rear impacts. In its recommendation, NTSB made favorable reference to IIHS's petition for rulemaking (the petition is discussed below).
NHTSA has issued a Final Regulatory Evaluation (FRE) that analyzes the potential impacts of this final rule. The FRE is available in the docket for this rule.
NHTSA estimates that 94 percent of new trailers sold in the U.S. subject to FMVSS Nos. 223 and 224 are already designed to comply with CMVSS No. 223. The agency estimates that about 0.56 lives and 3.5 serious injuries would be saved annually by requiring all trailers covered by Standard No. 224 to be equipped with CMVSS No. 223 compliant guards. The undiscounted equivalent lives saved are 1.4 per year.
Considering that 94 percent of applicable trailers already have CMVSS compliant guards, the annual average incremental fleet cost of equipping all applicable trailers with CMVSS No. 223 rear impact guards is estimated to be $2.10 million in 2020 dollars. In addition, the added weight of 48.9 pounds per vehicle would result in an estimated annual fleet fuel cost of approximately $4.43 million and $5.59 million discounted at 7% and 3%, respectively. As such, the total incremental cost would range from $6.54 million to $7.69 million discounted at 7% and 3%, respectively, as shown in Table 1.
The estimated equivalent lives saved (ELS) ranges from 0.90 lives to 1.14 lives discounted at 7% and 3%, respectively. The cost of the final rule is the regulatory cost and ranges from $6.54 million to $7.69 million discounted at 7% and 3%, respectively. The cost per ELS ranges from $6.77 million to $7.25 million discounted at 3% and 7%, respectively, as shown in Table 2 below.
The net benefit of the final rule is the difference between the comprehensive benefit and the total cost. The estimated net benefit ranges from $4.36 million to $6.04 million discounted at 7% and 3%, respectively, as shown in Table 3 below.
Table 4 summarizes the total costs, comprehensive benefits, and net benefits for both 3 and 7 percent discount rates.
After carefully reviewing the comments, NHTSA is adopting most of the proposed rule, while clarifying the wording that attachment hardware remain intact during quasi-static load tests in FMVSS No. 223. NHTSA is also making a technical correction to the citation referenced in the definition of “temporary living quarters” in FMVSS No. 224.
FMVSS No. 223 requires rear impact guards to meet the strength requirements and energy absorption requirements of the standard at certain specified test locations. Test locations P1, P2, and P3 are depicted in Figure 1. Test location P1 is 3/8th of the width of the horizontal member from the centerline on either side of the horizontal member. Test location P2 is at the centerline of the horizontal member. Test location P3 is 355 millimeters (mm) (14 inches) to 635 mm (25 inches) from the horizontal member centerline. The strength tests are conducted separately from the energy absorption test.
The strength requirements (S5.2.1) specify that the guard must resist the following force levels without deflecting by more than 125 mm (4.9 inches):
• 50,000 Newtons (N) (or 50 kiloNewtons (kN)) at P1 on either the left or the right side of the guard;
• 50,000 N at P2; and,
• 100,000 N at P3 on either the left or the right side of the guard.
In the strength test, the force is applied by a force application device (rectangular rigid steel solid face of 203 mm x 203 mm and thickness of 25 mm) until the force level is exceeded or until the displacement device is displaced at least 125 mm, whichever occurs first.
The energy absorption requirements (S5.2.2) specify that a guard (other than a hydraulic guard) must absorb, by plastic deformation, within the first 125 mm of deflection at least 5,650 Joules (J) of energy at each test location P3. In the test procedure, force is applied to the guard using the force application device until displacement of the device has reached 125 mm, recording the value of force at least 10 times per 25 mm of displacement. The force is then reduced until the guard no longer offers resistance to the force application device. A force versus deflection diagram is plotted with deflection (measured displacement of the force application device) along the abscissa (x-axis) and the measured force along the ordinate (y-axis), as shown in Figure 2, and the energy absorbed by the guard is determined by calculating the shaded area bounded by the curve in the diagram.
FMVSS No. 224 requires each vehicle to be equipped with a rear impact guard certified to FMVSS No. 223 and attached to the vehicle's chassis in accordance with installation instructions that the guard manufacturer provided pursuant to FMVSS No. 223. Standard No. 224 specifies that the ground clearance (vertical distance of the bottom of the horizontal member from ground) of the rear impact guard be no more than 560 mm (22 inches) and
IIHS requested, among other things, that NHTSA upgrade rear impact guard strength requirements, reduce the number of exempted vehicles to provide occupant protection in higher speed crashes and move the P1 test location farther outboard to improve crash protection in low overlap conditions. IIHS requested that NHTSA require attachment hardware to remain intact for the duration of the quasi-static test or until reaching a force threshold “much higher than that required for the guard itself.”
NHTSA proposed to adopt requirements of Transport Canada's standard for rear impact guards, which require rear impact guards to provide sufficient strength and energy absorption to protect occupants of compact and subcompact passenger cars impacting the rear of trailers at 56km/h (35 mph). The NPRM proposed the following specific changes to FMVSS Nos. 223 and 224.
NHTSA proposed that the loading and performance requirements of FMVSS No. 223 adopt the specifications in CMVSS No. 223. Specifically:
• The NPRM proposed to amend FMVSS No. 223 to require rear impact guards (except as noted below) to resist a uniform distributed load of 350,000 N without deflecting more than 125 mm, while absorbing at least 20,000 J of
• Alternatively, guards may resist a minimum uniform distributed load of 700,000 N without deflecting 125 mm.
• In accordance with CMVSS No. 223, we proposed to require that rear impact guards be required to maintain a ground clearance after the energy absorption test not exceeding 560 mm. For rear impact guards with strength exceeding 700,000 N in the uniform distributed load test, the post-test ground clearance is measured after the uniform distributed load test. A definition of “ground clearance” would be added to FMVSS No. 223.
• We proposed that FMVSS No. 223 require that any portion of the rear impact guard and attachments not separate from their mounting structure after completion of FMVSS No. 223's uniform distributed loading test and the energy absorption test.
We proposed to replace the current definition of “rear extremity” in FMVSS No. 224 with that specified in CMVSS No. 223. The change was intended to ensure that aerodynamic fairings are located within a certain safe zone at the rear of the trailer. Aerodynamic fairings on the rear of trailers, also known as “boat tails,” are rear-mounted panels on trailers that reduce aerodynamic drag and fuel consumption. The safety concern about boat tails is that they generally extend beyond the rear extremity of trailers and thus can negate the crash protection provided by rear impact guards. That is, there is a possibility that a boat tail can protrude so far rearward that it can intrude into the passenger compartment in a crash and cause injury, notwithstanding the presence of an upgraded rear impact guard.
NHTSA received fifty (50) comments on the NPRM.
Comments were generally in favor of upgrading rear impact guard performance. The petitioners, NTSB, engineers, attorneys, advocacy groups, and individuals from the general public argued, however, for increasing the stringency of FMVSS Nos. 223 and 224 beyond what was proposed in the NPRM. These groups also suggested that NHTSA take other actions suggested in the initial IIHS and Karth/TSC petitions that NHTSA had not proposed in the NPRM. The industry associations and trailer manufacturers were generally in favor of the proposed rule and opposed further changes to it. Comments also covered issues such as alternative guard designs, NHTSA's benefit-cost analysis, the proposed lead time, retrofitting issues, and side and front guards.
In the NPRM, NHTSA proposed to harmonize FMVSS No. 223's test and performance requirements to those specified in CMVSS No. 223 by replacing the current quasi-static point load test at the P3 location with a uniform distributed load test of 350,000 N. Under this test, NHTSA proposed that the rear impact guard must resist the 350,000 N load without deflecting more than 125 mm, absorb at least 20,000 J of energy within 125 mm of guard deflection, and have a ground clearance not exceeding 560 mm after completion of the test.
Commenters supported upgrading FMVSS No. 223's requirements as proposed, but most also suggested that NHTSA issue requirements more stringent than those proposed. Multiple commenters argued that, because 93 percent of trailers already comply with CMVSS No. 223 according to the NPRM, the proposed requirements would make little tangible difference and not prevent the underride injuries that are still occurring. The Underride Network (Network) stated that NHTSA's proposal would only “upgrade the standard as basically existed in 1996,” without going further to include technological improvements made for rear impact guards. Wabash, on the other hand, suggested that even though most new trailers currently adhere to CMVSS No. 223, there is still a benefit to the proposed requirements. Wabash argued that adopting the proposed requirements would both mandate that the remaining portion of the new trailer fleet adopt upgraded rear impact guards and allow NHTSA to take enforcement action against any company that fails to install upgraded rear impact guards.
Some commenters also urged NHTSA not to adopt a proposal that only provides protection against underride at impact speeds up to 56 km/h (35 mph), stating that these crashes only represent a fraction of all rear underride crashes. These commenters remarked that NHTSA should do more to provide protections for underride crashes that occur at greater speeds. Some commenters suggested specific requirements that they believed NHTSA should adopt instead of those proposed in the NPRM. Network requested that the quasi-static loading tests use a force of 200 (kN) at the P1 and P2 test locations and 100 kN at the P3 test location. Mr. Kiefer suggested that rear impact guards should be quasi-statically tested to “at least 80% of reasonable crash pulse loadings.” Mr. Karth referenced what he called a “new Australian/New Zealand proposed rule” and asked NHTSA to use that as a basis for its standards. According to Mr. Karth, the Australian/New Zealand proposed rule states that current vehicle crashworthiness technology can protect passengers in collisions with a deformable barrier at impact speeds around 64 km/h (40 mph) and that energy absorbing rear impact guards could reduce injury at higher speeds. Ms. Karth echoed this point, stating that adopting the Australian/New Zealand proposed rule would save more lives than adopting standards based on CMVSS No. 223. These and all other relevant comments are address below.
After reviewing the comments, NHTSA is adopting the strength and energy absorption standards as proposed in the NPRM. NHTSA recognizes that many commenters have asked NHTSA to require rear impact
Further, the 56 km/h (35 mph) crash speed accords with Section 23011(b)(1)(A) of BIL. BIL states that, not later than 1 year after the date of enactment of the Act, the Secretary shall promulgate regulations that revise FMVSS No. 223 and FMVSS No. 224 to require new trailers and semitrailers to be equipped with rear impact guards that are designed to prevent PCI from a trailer or semitrailer when a passenger vehicle traveling at 56 km/h (35 mph) makes an impact into the center of the rear of the trailer or semitrailer and in which 50 percent of the width of the passenger motor vehicle overlaps the rear of the trailer or semitrailer. This final rule's adoption of the NPRM's proposed test speed meets the BIL statutory mandate within the timeframe directed by the Act, and meets the requirements for FMVSSs required by the Safety Act.
In response to the research mandate in Section 23011(b)(2) of BIL, NHTSA is conducting additional research on the design and development of rear impact guards that can prevent underride and protect passengers in crashes into the rear of trailers at crash speeds up to 104.5 km/h (65 mph). After the completion of this research, NHTSA will evaluate potential requirements for rear impact guards for preventing underride and protecting occupants at impact speeds greater than 35 mph.
Commenters also referred to guard designs and recommendations developed by third parties that claim to offer greater protection at higher impact speeds than guards currently in use. There is no evidence that any have been finalized, implemented, and proven feasible for commercial use. The Intelliguard/Impact Project, a design source cited by Mr. Karth, explicitly stated, “The guard needs, however, further optimization to become commercially feasible.”
Network asked NHTSA to test rear impact guards “at real world speeds,” arguing that the Federal Highway Administration (FHWA) tests crash attenuators at 100 km/h (62.2 mph) and that NHTSA should crash test rear impact guards at similar speeds. In response, NHTSA notes, first, that it did not propose to test at highway speeds in the NPRM and believes this request may be outside the scope of this rulemaking. Further, NHTSA does not believe that Network's comparison of rear impact guards and FHWA roadside crash attenuators is appropriate. Roadside crash attenuators are stationary barriers placed alongside roads that are designed to absorb a colliding vehicle's energy and safely redirect the vehicle or bring it to a stop. A typical crash attenuator system is 50 feet long. In contrast, rear impact guards are structures attached to the rear of mobile trailers to mitigate underride of the impacting vehicle. Roadside crash attenuators, therefore, are designed for a different environment than a rear impact guard, have different performance requirements,
• TL-1: Cars and trucks—31 mph
• TL-2: Cars and trucks—44 mph
• TL-3: Cars and trucks—62 mph
• TL-4: Cars, trucks, and single unit trucks—62 mph and 56 mph respectively
• TL-5: Cars, trucks, and tractor trailers—62 and 50 mph respectively
• TL-6: Cars, trucks, and tractor tank trailers—62 and 50 mph respectively
In terms of specific standards suggested by commenters, these commenters unfortunately did not provide sufficient information to warrant modifying the proposed requirements. Commenters did not provide data showing the extent to which guards compliant with these various standards are superior to the Canadian guards. NHTSA notes that the “Australian/New Zealand proposed rule” referenced by Mr. and Ms. Karth is not a regulatory requirement, but rather is an industry design guideline created by Standards Australia and Standards New Zealand. These guidelines do not provide information to warrant modifying NHTSA's proposal. In terms of rear impact guards performing at impact speeds above 56 km/h (35 mph), the guidelines only conjecture that guards
Based on tests conducted by Transport Canada showing that a CMVSS No. 223 compliant guard was able to prevent PCI in 56 km/h (35 mph) vehicle impacts into the rear of trailers with 100 percent and 50 percent overlap, NHTSA proposed to adopt CMVSS No. 223's strength and energy absorption requirements.
NHTSA received many comments arguing that the proposed standards were inadequate because rear impact guards generally meet them already. Advocates and IIHS referred to a 2011 Wabash guard, involved in the tests conducted by IIHS, to argue that the guard exceeded the CMVSS force requirements by more than 70 percent in quasi-static tests. Other commenters also mentioned that they believed it possible to design a rear impact guard that could provide protection for rear underride crashes at speeds greater than 56 km/h (35 mph), several pointing to testing conducted by third parties to support these claims. Network and Mr. Karth stated that the Monash University Accident Research Centre (MUARC) tested energy-absorbing guards to 75 km/h (47 mph) in the early 1990s. They also claimed that the Impact Project had
Other commenters stated that they personally were either developing or had seen rear impact guards that were improvements over guards meeting the current and proposed standards. Mr. Karth pointed to a design developed by the VT Group which, he claimed, “shows promise of greatly improving the current standard at a reasonable cost.” Mr. Kiefer stated that he had developed a rear guard system that will exceed the proposed standards. Mr. Karth stated that he was told by a Mr. Sicking that he “can design a system which will prevent underride guard failures” that occur “at much higher speeds.”
NHTSA has evaluated the data from IIHS and other research groups provided by the commenters and cannot agree that the information forms a technical basis for modifying the proposed requirements. Advocates and IIHS argued that rear impact guards could provide protection at speeds higher than 56 km/h (35 mph) because the Wabash guard exceeded CMVSS No. 223 force requirements by “more than 70 percent” in tests conducted by IIHS. Our analysis of the comment, however, determined that IIHS's tests were different than, and not comparable to, the CMVSS No. 223 tests. IIHS conducted a point load test at P3, which is very different than the uniform distributed load specified in CMVSS No. 223 and this final rule.
Section 1 of E.O. 12866 requires agencies to base their decisions on the best reasonably available scientific, technical, economic, and other information on the need for, and consequences of, the intended regulation. In accordance with the E.O., this final rule will complete the upgrade of Standard No. 223 to the Canadian standard as proposed, as it is based on the best information reasonably available at this time. However, while the commenters' information does not form a comprehensive or complete basis for modifying the rear impact guard requirements above that which was proposed, NHTSA is continuing to research this area in response to BIL. Pursuant to the research mandate in BIL Section 23011(b)(2), NHTSA is conducting additional research on the design and development of rear impact guards that prevent underride and protect passengers in crashes into the rear of trailers at crash speeds up to 104.5 km/h (65 mph). The results of this research and other information will provide more data and other information that can guide decisions about updating the rear impact guard standards at a future date.
In response to commenters, NHTSA also reviewed guard designs and recommendations developed by third parties (MUARC, VT group, Aaron Kiefer, Sickling) that several commenters believed could offer greater protection at higher impact speeds than rear impact guards currently in use.
NHTSA has the same concerns with the experimental guards described by the Impact Project, the VC-Compat project, the VT Group, Mr. Kiefer, and Mr. Sicking. Commenters did not provide information that the guards are effective at providing protection at impact speeds beyond 56 km/h (35 mph) and failed to provide a verifiable relationship between the results of the dynamic crash tests and quasi-static specifications that NHTSA relies on in FMVSS No. 223. In the absence of such data, there is insufficient information supporting using these experimental guards to form the requirements for FMVSS Nos. 223 and 224. As discussed above, however, NHTSA will continue researching guard performance in higher speed crashes in response to BIL and anticipates obtaining more comprehensive information about the performance and other features of potential guards designed for higher speed impacts.
The NPRM proposed to include an option from CMVSS No. 223 permitting a rear impact guard not to meet the energy absorption requirements of the uniform distributed load test detailed above if it is able to resist 700,000 N (700 kN) of force without deflecting more than 125 mm and maintain a ground clearance of 560 mm after completion of the test. NHTSA noted in the NPRM that it did not believe that guards will likely be manufactured to this test but sought comment on
Commenters were divided in their support of the 700 kN test option. TTMA stated in support that keeping this as an option would allow TTMA members to retain needed flexibility. Batzer asserted in support that, since passenger vehicles have improved their energy absorbing characteristics since the 1996 final rule, NHTSA does not need to require that rear impact guards meet an energy absorption requirement as long as the guards can provide a certain level of resistance force. Network stated that this option “might make sense,” but also stated that rear impact guards must be able to absorb a minimum of 50 kJ, and preferred that guards be able to absorb 100 kJ. Ms. Wood agreed that rear impact guards must be able to absorb at least 50 kJ. The VT Group disagreed with including the 700 kN test, stating that doing so would afford manufacturers the ability to omit a horizontal member from a rear impact guard. The VT Group claimed that without a horizontally distributing structure, “a minor impact more closely resembles a pole strike.”
NHTSA agrees with TTMA and Batzer and believes it appropriate to adopt the 700 kN test option. Network and the VT Group expressed reservations about the option, but they did not provide data or other evidence demonstrating that this option would be detrimental to safety. They did not provide any further information supporting the request for a 50 kJ or 100 kJ energy absorption requirement, nor did they explain how the 700 kN test option would allow manufacturers to omit a horizontal member. FMVSS No. 223 S5.1 specifies that the vertical height of the horizontal member must be at least 100 mm and FMVSS No. 224 S5.1 specifies geometric requirements for the rear impact guard that remain unchanged by this test option.
Transport Canada developed the 700 kN test option based on rigid barrier crash test results suggesting that a resistance to a uniform load of at least 700 kN would help ensure that the rear impact guard will stay in place and prevent underride in an impact with a passenger car at impact speeds of 56 km/h (35 mph).
NHTSA proposed maintaining the current ground clearance requirement of 560 mm (22 inches) (S5.1.2, FMVSS No. 224) but also proposed updating FMVSS No. 223 to require rear impact guards to maintain a ground clearance of 560 mm (22 inches) after completion of the load application during the energy absorption test. Due to deformation that may occur upon loading, NHTSA noted that this requirement may correspond to an initial ground clearance on the trailer that is actually less than 560 mm (22 inches).
Many commenters suggested lowering the ground clearance requirement. These commenters generally argued that rear impact guards must align with the height of car bumpers and since NHTSA mandates that passenger car bumpers be 16 to 20 inches (406.4 to 508 mm) off the ground, NHTSA must lower the ground clearance requirement to this level. The VT Group stated that NHTSA's bumper standards in “49 CFR 581 requires a light vehicle bumper height of 16 to 20” inches and that lowering ground clearance to this level “could ensure proper initial engagement with light vehicle safety systems.” Batzer similarly stated that the most effectively designed rear impact guard “would engage the bumper of the striking passenger vehicle.” Commenters also suggested that, because the average guard height for trailers currently is 18 inches (457.2 mm), there is no need for NHTSA to allow for a higher ground clearance. Mr. D.J. Young, III and Mr. Andy Young stated that technology exists that can raise or lower rear impact guards, and therefore NHTSA should not be concerned that a lower ground clearance requirement could result in a rear impact guard scrapping or snagging along the ground.
NHTSA proposed amending FMVSS No. 223 to require that, after the energy absorption test where the guard is displaced 125 mm, the rear impact guard has to maintain a ground clearance not exceeding 560 mm (22 inches) but did not propose to alter the 560 mm (22 inches) ground clearance requirement in FMVSS No. 224. The NPRM explicitly stated that NHTSA was denying the request made by petitioners to lower the ground clearance requirement and NHTSA did not propose such a change in the NPRM. The suggestions to lower the ground clearance requirement are thus not within the scope of this rulemaking. Further, NHTSA included in the NPRM its rationale for denying the request to lower the ground clearance requirement, and, after reviewing the comments and other information, NHTSA has not changed its position on these points. In the interest of discussion, NHTSA will briefly repeat its reasoning here.
Comments stating that NHTSA should modify the ground clearance requirement to align with NHTSA's bumper standard (49 CFR part 581) misunderstood the purpose of the bumper standard and repeat a concern to which NHTSA responded in the 1996 final rule establishing FMVSS Nos. 223 and 224.
Nor is it the case that the major structural components of vehicles have been so lowered as to necessitate lowering the ground clearance requirement. To the contrary, the height of the top of the engine block appears to have
Further, NHTSA is concerned that some trailers may face operational issues if NHTSA lowered the ground clearance requirement. Trailers may snag and scrape at loading docks and steep railroad crossings, resulting in damage to the guard, if guards were required to be lower to the ground. The commenters advocating for a lower ground clearance requirement provided no data to show that this possible risk can be overcome or is offset by any potential benefits. Similarly, NHTSA does not believe it is appropriate to lower the ground clearance requirement and then force operators involved in intermodal operations to possess trailers with rear impact guards that can be raised and lowered. Doing so would unnecessarily burden the industry and raise costs, and commenters have not identified any associated benefits that would justify this decision.
The NPRM focused on ensuring the attachment hardware of the rear impact guard remained intact in the quasi-static loading tests. It proposed to prohibit the complete separation of any portion of the guard and the guard attachments from its mounting structure after completion of the quasi-static uniform distributed load test (proposed S5.2.1). NHTSA stated in the NPRM (80 FR at 48429) that it was interpreting “`any portion of the guard and the guard attachment completely separating from its mounting structure' to mean the condition where any member of the guard becomes detached from any other member of the guard or from the trailer such that the joint is no longer mechanically bound together.” The agency further stated that it would not consider a partial separation of the members at a joint where there is still some degree of mechanical connection between the members as a “complete separation.”
Commenters had different views regarding the proposed requirement that attachment hardware remain attached throughout the quasi-static test. Notably, commenters in favor of such a requirement still asked NHTSA to refine the language used in the regulatory text. The NTSB stated that it supported developing performance criteria to determine objectively the degree of separation that may significantly reduce rear impact guard performance, but the commenter did not provide information on what the criteria should be. IIHS stated that the standard should require rear impact guards to withstand the quasi-static load tests without any separation between the guard and guard attachments rather than adopt the criterion of complete separation that NHTSA proposed. IIHS believed that NHTSA's language in the preamble, stating that the agency would consider partial separation acceptable as long as there was still some degree of mechanical connection between the guard's members, was vague. Due to this perceived ambiguity, IIHS questioned whether NHTSA would consider a joint where 3 of 4 bolts were sheared to constitute a partial separation.
The TTMA, on the other hand, expressed concerns with making the standard overly complicated in trying to make it more objective, stating that setting specific requirements for numbers of welds or fasteners to remain intact “would unnecessarily complicate the standard compared to the Canadian equivalent, and could preclude the use of designs with components that may be designed to shear or tear as part of an energy mitigation strategy.” Seven Hills remarked that TTMA's concerns could be alleviated by modifying the design of rear impact guards.
NHTSA agrees with the comments that FMVSS No. 223 should require attachment hardware to remain attached during the quasi-static load test. However, NHTSA does not agree with IIHS's specific suggestion of a requirement that there be no separation at any point. Guards may be designed to have attachment hardware shear away from the guard during impact to absorb the impact energy. The agency does not find it necessary to prohibit these kinds of guards if they meet the criterion discussed below.
While NHTSA requested comments on an objective criterion that would keep guards from separating from their attachment hardware (other than by prohibiting a “complete separation”), the agency did not receive any data or bases to aid NHTSA on this issue. NHTSA agrees with commenters, though, that the language the agency used in describing the requirement in the NPRM could be clearer. NHTSA proposed in S5.2.1 that a tested guard must resist the force levels specified in S5.2.1(a) through (c) without deflecting by more than 125 mm and “without complete separation of any portion of the guard and guard attachments from its mounting structure.” This final rule replaces the phrase “without complete separation of any portion of the guard and guard attachments from its mounting structure” in proposed S5.2.1 and S5.2.2(a)(1) with the phrase “without eliminating any load path that existed before the test was initiated.” “Load path” is a standard engineering term. The agency is defining “load path” to mean a route of force transmission from the horizontal member of the guard to the chassis.
Load paths represent how forces applied to the guard will transmit through the guard to the chassis based on the geometry of the guard. For the purposes of FMVSS No. 223, NHTSA will determine load paths by visual inspection prior to conducting the quasi-static load tests. NHTSA will assess whether any load paths are eliminated after any force applied during the test using the force application device is removed. “Eliminating a load path” means that a load path designed to transmit force from the horizontal member of the rear impact guard to the chassis, can no longer transmit the force.
If two or more members in the load path are joined using multiple bolts, NHTSA will not consider each bolt to be an individual load path. For instance, if the vertical member of a rear impact guard was attached to the horizontal member by four bolts, NHTSA would not consider the load path to have been eliminated if one, two, or three of the bolts sheared off or otherwise became disconnected during testing. On the other hand, if all four bolts sheared off, or otherwise became disconnected, the agency would consider this to constitute an eliminated load path, even if the guard's members remained in contact due to friction or the structural integrity of another portion of the guard. To use another example, if two members in a load path are connected by a single weld and if the weld developed one or more discontinuous cracks during testing, NHTSA would not consider this to constitute an eliminated load path. If, however, a continuous crack developed during testing along the entire length of the weld holding the two members together, this would constitute an eliminated load path as a route of force
The NPRM proposed replacing the current definition of “rear extremity” in FMVSS No. 224 with the definition from CMVSS No. 223. NHTSA proposed this change to account for aerodynamic fairings, also known as “boat tails,” which are rear-mounted panels that reduce aerodynamic drag and fuel consumption. The proposed change to the definition of “rear extremity” was meant to ensure that aerodynamic fairings would be placed where, in a collision, they would not jeopardize the safety of occupants in vehicles striking the rear of the trailer.
Network, TTMA, and NTSB all supported NHTSA's proposed change. The VT Group and Batzer raised concerns that aerodynamic fairings could pierce windshields in instances of partial underride and pose an impalement hazard. Batzer further suggested that NHTSA require every trailer manufacturer and/or user with a non-standard end profile to do a formal engineering analysis of their equipment to document that they have considered the safety implications of their design.
After reviewing the comments on this issue, NHTSA agrees with commenters supporting the proposal. The proposed definition for “rear extremity” is based on the Canadian definition, which Transport Canada arrived at after extensive research into aerodynamic fairings. While commenters raised concerns over impalement risks, aerodynamic fairings are typically lightweight structures and no commenter provided evidence showing a risk of vehicle occupant impalement by such fairings. NHTSA will continue to monitor rear impact collisions and revisit the definition if necessary. Requiring trailer manufacturers to do a formal engineering analysis on aerodynamic fairings, as Batzer suggested, is beyond the scope of the proposal.
FMVSS No. 224 excludes several types of trailers from application of the standard (S3). As noted in the NPRM, low chassis vehicles
Although the NPRM did not propose to expand the applicability of FMVSS No. 224, NHTSA received many comments urging NHTSA to apply the standard to vehicles now excluded from it. We discuss these comments in Section V below. As to correcting S3 to add low chassis vehicles back into S3, NHTSA did not receive any comments opposed to the correction. Accordingly, this final rule corrects S3 as proposed.
The NPRM's proposed regulatory text for FMVSS No. 224 included restated current text in S3 that excluded vehicles with temporary living quarters “as defined in 49 CFR 529.2.” RVIA commented on this proposed wording, stating that the NPRM's reference to “temporary living quarters as defined in 49 CFR 529.2” was an incorrect reference. RVIA suggested that the definition of temporary living quarters should point to 49 CFR 523.2.
RVIA is correct that the NPRM's reference to 49 CFR 529.2 as providing a definition for temporary living quarters was erroneous. The regulations at 49 CFR 529.2 do not include any definition for temporary living quarters. The preamble for the 1996 final rule properly referred to 49 CFR 523.2 (61 FR 2022), but the regulatory text for the 1996 final rule mistakenly referenced 49 CFR 529.2 (61 FR 2035). NHTSA is taking this opportunity to make a technical correction to FMVSS No. 224 and make clear that the definition of temporary living quarters is defined in 49 CFR 523.2.
NHTSA received a number of comments on aspects of FMVSS No. 223 and 224 that the agency did not propose to change. Although these comments were beyond the scope of the rulemaking, we discuss them here to further our dialogue in this area.
FMVSS No. 224 (S3) excludes pole trailers, pulpwood trailers, road construction controlled horizontal discharge trailers, special purpose vehicles, wheels back vehicles, or temporary living quarters (S3). NHTSA did not propose to remove any of these exclusions. We evaluated the exclusions when we were drafting the NPRM and decided not to change them (80 FR 78426-78428). The decision was based on our analysis of data provided by the 2013 UMTRI Study.
A number of commenters disagreed with NHTSA's continued exclusion of various vehicles. Commenters raised the most concerns about the exclusions for single unit trucks (SUTs)
Regarding NTSB assertions that SUT crashes are underestimated in FARS because trucks are frequently misclassified, and with respect to Ms. Karth's comment that underride and PCI are underreported in FARS, NHTSA did not use FARS data in developing this rulemaking and instead used TIFA data for the years 2008 and 2009 with supplemental information reported in the 2013 UMTRI Study.
With further regard to whether NHTSA's data underreported underride, we believe that the data appear to include some crashes that did not actually result in underride. In the 2013 UMTRI Study, the extent of underride was estimated in terms of the amount of the striking vehicle that went under the rear of the struck vehicle and/or the extent of deformation or intrusion of the striking vehicle. The categories were “no underride,” “less than halfway up the hood,” “more than halfway but short of the base of the windshield,” and “at or beyond the base of the windshield.” NHTSA believes it is most relevant for this rulemaking to consider the relevant crashes to be as an underride that resulted in PCI beyond the base of the windshield. However, since the 2013 UMTRI Study determined the extent of underride by the extent of deformation and intrusion of the vehicle, there were a number of TIFA cases involving large vans and large pickups that did not actually underride the truck or trailer, but that had sustained PCI because of the high speed of the crash and/or because of the very short front end of the vehicle. Because these large striking vehicles did not underride the struck vehicle, NHTSA's interpretation in the NPRM of PCI from the 2013 UMTRI Study potentially overestimated the occurrence of PCI due to underride. We believe, in other words, that NHTSA's analysis using data in the 2013 UMTRI Study potentially overestimated PCI due to underride.
NHTSA responded to the Karth/TSC petition by publishing two separate notices.
NHTSA has also analyzed comments criticizing the 2013 UMTRI Study as applied to wheels back trailers and believes that the data in the study are sound. The UMTRI data were enhanced specifically for trailer rear impact analysis and the study contains enriched data specific to impact performance. The 2013 UMTRI Study
NHTSA also does not agree with IIHS that the presence of wheels back trailers with rear impact guards in the 2013 UMTRI Study raises doubts about NHTSA's conclusion there is an absence of a safety need for the guards. First, while IIHS references data from the TIFA data sets for 2008-2009 to claim that half of wheels back trailers involved in a fatal crash were equipped with rear impact guards, the data do not provide information on the guards equipped or the need for a guard. The data sets do not record if any of the guards were original equipment or were even compliant to a standard such as FMVSS No. 223. The presence of a rear impact guard that lacks sufficient strength and energy absorption characteristics specified in FMVSS No. 223 would not mitigate PCI in light vehicles at impact speeds 30 mph or lower.
Further, IIHS implies that the guards prevented underride rather than the wheels of wheels back trailers, but does not provide information to substantiate the claim that the guards had prevented underride rather than the wheels of the trailer. IIHS provided no data to suggest this interaction with the guard versus the wheels is occurring. In the 1996 final rule that established FMVSS No. 224, NHTSA determined that “a fixed rear axle with the tires mounted within 305 mm [12 inches] . . . of the vehicle's rear extremity constitutes an adequate substitute for a rear impact protection guard from the standpoint of preventing PCI.”
FMVSS No. 223 currently provides that NHTSA may test a rear impact guard when attached, per manufacturer's instructions, to either a rigid test fixture or to a complete trailer, at the guard manufacturer's option. As discussed in the NPRM, NHTSA denied the request from the petitioners to remove the option of testing on a rigid test fixture. The agency determined that the two tests are essentially equivalent and that requiring that guards be tested when attached to the trailer could be a significant cost burden to small trailer manufacturers.
Many commenters expressed a preference to NHTSA's testing guards only when attached to a complete trailer. Ms. Karth and Network stated that rear impact guards and the trailers to which they are attached are a system and that compliance testing should be conducted with the guard attached to the trailers and/or a portion of the trailer that includes all structures to which the guard attaches. Batzer believed that testing rear impact guards on the trailer on which they will be mounted “would produce more confidence in the design.” IIHS and Advocates stated that testing on rigid test fixtures disregarded the fact that crash tests with rear impact guards attached to trailers resulted in deformation to the trailer. IIHS stated that allowing rear impact guards to be tested when attached to a rigid fixture rather than to an actual trailer is “insufficient to guarantee underride prevention” because a guard certified to meet the standards of CMVSS No. 223 may be attached to a trailer structure that does not have the demonstrated capability to resist the same force level. IIHS claimed that the relatively weaker structure of the trailer may deform during a crash, leaving “open the possibility that guards will be attached
We considered the suggestion to remove the option for fixture testing when we evaluated the petitions and ultimately concluded not to include it in the proposed rule. Many of the commenters raise points NHTSA discussed in the NPRM and points NHTSA had discussed in the original 1996 final rule. In the 1996 final rule, NHTSA explained that, even though testing on a trailer is desirable “because there is nothing more `appropriately configured' for guard mounting on the actual trailer” and because such testing also tests the structural integrity of the trailer chassis, the agency's data demonstrated that rear impact guards tested on rigid test fixtures performed similarly to their performance on an actual trailer.
NHTSA stated its view that a rear impact guard attached to a rigid test fixture would not have a trailer to absorb a portion of the load so the severity of the fixture test might be higher than a trailer test. IIHS and Advocates seemed to argue the opposite, stating that testing on rigid test fixtures disregarded the fact that crash tests with rear impact guards attached to trailers resulted in deformation to the trailer. NHTSA cannot conclude that trailer deformation itself indicates that the total resistance of a guard-attachment-trailer system is lower than that of the guard alone on a rigid test fixture. The trailer structure may have deformed because it offered resistance to the dynamic loads. As stated in the NPRM, testing on a rigid test fixture has an advantage over trailer testing in its potential to show that the guard is capable of resisting all loads and absorbing all the energy.
The commenters did not provide information showing that requiring each rear impact guard be tested on a trailer would offset the significant costs of doing so, especially for small trailer manufacturers with low sales volumes. As noted in the NPRM, if small manufacturers were to test the rear impact guard on the trailer, this testing could involve sacrificing what could constitute a substantial part of their overall trailer production. NHTSA does not believe there is a safety basis justifying these impacts on these manufacturers.
Finally, NHTSA emphasizes the test specifications in the FMVSS reflect how NHTSA will perform tests to evaluate compliance; they do not limit how manufacturers certify compliance. Inserting a requirement into FMVSS No. 223 specifying how manufacturers can certify their own compliance, as suggested by Batzer and VT Group, is not in accordance with the purpose and structure of the FMVSS.
Both petitioners IIHS and TSC/Karth requested that NHTSA take steps to prevent underride in low overlap crashes (crashes with 30 percent overlap or less of the impacting vehicle with the trailer rear).
NHTSA reviewed the requests in the petitions but did not propose to move the P1 location further outboard as a part of this rulemaking. The requests were not supported by sufficient information, as the petitioners did not explain why moving the P1 location further outboard would improve guard performance in low overlap crashes.
NHTSA determined that the performance of rear impact guards in crashes other than low overlap should be enhanced before turning to performance specific to low overlap crashes. We analyzed the data collected in the 2013 UMTRI Study and found that underride crashes of 30 percent overlap or less represented a smaller portion of the rear underride fatality problem than non-low overlap crashes. We decided to focus the NPRM on crashes other than low overlap because those were the more prevalent fatal crashes.
The data do not show that improving low overlap crash performance would improve non-offset crash performance. In fact, data indicate a potential negative consequence. NHTSA expressed a concern in the NPRM about a potential risk that bolstering performance in a 30 percent overlap crash might degrade protection in 50 and 100 percent overlap crashes. The Manac rear impact guard features vertical supports towards the lateral edge of the trailer. While this guard was able to prevent PCI in the 56 km/h (35 mph) 30 percent overlap condition during IIHS's crash tests, in IIHS's 56 km/h (35 mph) full overlap crash test, the Manac guard had the greatest amount of deformation (1,350 mm) of any guard. NHTSA was concerned that these data indicated that rear impact guards designed like the Manac, with the main vertical supports for the guard more outboard, may not perform as well compared to other guards in full overlap crashes at crash speeds at or greater than 56 km/h (35 mph).
To summarize, data indicated that: (a) full and 50 percent overlap crashes are more frequent than 30 percent overlap crashes; (b) most fatal light vehicle impacts into the rear of trailers are at speeds greater than 56 km/h (35 mph); and, (c) improving performance against low overlap crashes could reduce performance of the guard in full and 50 percent overlap crashes. Given those factors, we decided not to take an approach in this rulemaking that would improve guard performance in a 30 percent overlap crash but that could lessen protection in 50 and 100 percent overlap crashes at higher speeds (speeds higher than the 35 mph speed on which the amended FMVSS No. 223 would be based).
Several commenters disagreed with NHTSA's decision to refrain from pursuing rulemaking on low overlap crashes. Some commenters pointed to existing guards (
Several commenters argued that fatal low overlap crashes occurred more frequently than stated by NHTSA. IIHS believed that the data underlying NHTSA's finding that 40 percent of light vehicle impacts into the rear end of trucks and trailers in fatal crashes were offset crashes were collected “during phone interviews with someone who was familiar with each crash but may not have been at the crash scene” and “took place 1-2 years after the crash.” Advocates remarked that TIFA survey data “is known to consist of notoriously suspect crash data and analysis.” In response, NHTSA does not agree that the agency did not accurately calculate the prevalence of low overlap crashes. The 2013 UMTRI Study forms the most scientific, comprehensive and valid data set available to inform the agency and safety community on this issue.
IIHS referred to its 2010 study of passenger vehicle crashes into the rear of trailers and semitrailers in the Large Truck Crash Causation Study (LTCCS) to argue that, “guard deformation or complete failure was frequent and most commonly due to weak attachments, buckling of the trailer chassis, or bending of the lateral end of the guard under narrow overlap loading.”
In response, the data used in the 2010 IIHS study comprised too small a sample to generalize the extent of low overlap crashes in the U.S. NHTSA notes that in 22 of the 30 cases, it was not clear whether the rear impact guards on the trailers were compliant with FMVSS No. 223 and among the 9 low overlap crashes. Seven rear impact guards on the trailer exhibited deformation similar to that in the IIHS 30 percent overlap crash tests (the lateral end of the guard bent forward in the impact). In the other 2 cases, the rear impact guards experienced failure at other locations likely due to the guards being weak in general. Among the 30 LTCCS cases IIHS analyzed, only 8 were crashes of passenger vehicles into the rear of trailers with FMVSS No. 223 compliant rear impact guards. Among these 8 trailers, 2 rear impact guards showed no signs of failure, 3 rear impact guards failed at the attachment to the trailer structure, 1 rear impact guard bent forward due to localized loading from a low overlap crash, and 2 rear impact guards were damaged too severely to determine the failure mechanism. In other words, the 2010 IIHS study uses too small a data sample to generalize the extent of low overlap crashes in the U.S. In contrast, the 2013 UMTRI Study provides a scientific annual estimate of all fatal crashes into the rear of trailers in the U.S., including offset crashes and the extent and type of rear impact guard damage in crashes.
Seven Hills said it did not understand why NHTSA was considering the extent of guard damage, as a fatal collision involving major damage to a guard should be treated the same as a fatal collision that did not involve major damage. It also argued that minimal guard damage in fatal offset impacts indicates that the problem is lack of adequate guard strength on the outside edges of trailers. The commenter said that the absence of a difference in the percentage of light vehicle crashes with PCI in offset crashes and non-offset crashes shows a need to improve the performance of rear impact guards in low overlap conditions, particularly when such PCI is occurring in what Seven Hills viewed as “otherwise non-injurious speed differences.”
In response, NHTSA believes examining the extent of rear impact guard damage, along with the occurrence of PCI, is important to determine the utility of improving guards to protect against non-offset crashes. Rear impact guards sustain more damage in non-offset crashes, which suggests that non-offset crashes are potentially more harmful and thus should be addressed first. Our statement that we found no difference between the percentage of light vehicle crashes with PCI in offset crashes and non-offset crashes was not meant to suggest that offset crashes are not a concern. Rather, because (a) more fatal light vehicle crashes into the rear of trucks and trailers are non-offset crashes, (b) non-offset occur significantly more frequently than low overlap crashes (crashes with 30 percent or less overlap of the impacting vehicle with the rear of the trailer), and (c) non-offset crashes appear more harmful of the two, NHTSA was explaining why it decided to pursue this rulemaking on non-low overlap crashes at this time.
IIHS stated that guard damage is not an adequate metric for the severity of underride and questioned whether NHTSA could accurately calculate the extent of guard damage based on TIFA survey data. In response, NHTSA notes that the damage to the guard was not used to assess the severity of underride but was part of the information collected to determine impact severity. The 2013 UMTRI Study used enhanced data on the rear of the trailer to determine the extent of guard damage. The severity of underride and the occurrence of PCI were determined from the light passenger vehicle information.
IIHS noted that the Manac rear impact guard was not the only design that performed well in the 30 percent overlap crash and that other designs such as the Vanguard rear impact guard also mitigated PCI in 30 percent overlap crashes. The agency agrees that other rear impact guard designs that connect directly to the longitudinal frame rails of the trailer through the vertical members are able to mitigate PCI in 30 percent overlap crashes without reducing protection against PCI in full and 50 percent overlap crashes. However, as shown later in the section, these guards add cost and weight to the trailer.
TSC and Advocates stated that, even if the majority of fatal light vehicle crashes into the rear of trucks and trailers were non-offset crashes, this still meant that 40 percent were offset
Rear impact guards are designed to absorb energy and prevent PCI by attaching to substantial structural elements of a trailer or semitrailer, such as the chassis longitudinal frame rails, by way of vertical support members. The test results from the initial testing at IIHS reported in the NPRM show that many trailer rear impact guards designed to CMVSS No. 223 met the proposed performance requirements in the NPRM in full overlap and 50 percent overlap crashes but were unable to prevent PCI in a 35 mph crash into the rear of the trailer where only 30 percent of the width of the passenger vehicle front end overlapped with the rear of the trailer. In these 30 percent overlap crashes, only a small lateral portion of the rear impact guard (about 22 percent of the guard width) engaged with the front end of the passenger vehicle. This small lateral portion typically did not include a vertical support member of the guard, so when the passenger vehicle struck this small lateral portion of the guard, the guard deformed locally and did not prevent PCI.
In the initial crash tests conducted by IIHS, only the Manac rear impact guard was able to prevent PCI in the Chevy Malibu in the 56 km/h (35 mph) full overlap, 50 percent overlap, and the 30 percent overlap test conditions. Unlike most trailer designs, however, where the vertical members of the rear impact guard attach directly to the longitudinal frame rails of the trailer, the vertical members of the Manac rear impact guard were located further outboard from the location of the trailer longitudinal frame rails and attached to a reinforced floor section of the trailer. While the more outboard vertical supports of the Manac guard improved rear impact protection in low overlap crashes of light vehicles into the rear of trailers, the further outboard vertical supports appeared to reduce guard strength near the center of the horizontal member of the rear impact guard. In the 56 km/h (35 mph) full overlap crash tests of the Malibu, the greatest amount of underride (1,350 mm) was in the test with the Manac trailer. In contrast, the extent of the underride was 990 mm in the test with the Wabash trailer.
The full overlap IIHS crash test results raise the possibility that for crash speeds greater than 56 km/h (35 mph), trailers that have the main vertical supports for the guard more outboard may not perform as well in full overlap crashes as trailers that have the vertical supports more inboard. Since full and 50 percent overlap crashes are more frequent than low overlap (30 percent or less) crashes, and because most fatal light vehicle impacts into the rear of trailers are at speeds greater than 56 km/h (35 mph), the agency is concerned that such guard designs may reduce protection against PCI in the more frequent higher speed full and 50 percent overlap crashes. NHTSA is concerned about potential negative safety consequences accruing from a rule that resulted in designs that moved the vertical members of rear impact guards more outward laterally to prevent underride in a 56 km/h (35 mph) 30 percent low overlap crash, if such a rule reduced protection in full and 50 percent overlap crashes.
NHTSA has estimated the potential benefits of adopting a 30 percent overlap crash. The agency estimated the number of fatalities in 30 percent or lower overlap crashes in the field based on the available information, estimated the effectiveness of the rear impact guards that prevent PCI in 30 percent overlap crashes, and estimated the lives saved by a requirement for rear impact guards mitigating PCI in 56 km/h (35 mph) 30 percent overlap crashes.
The 2013 UMTRI Study found that 40 percent of light vehicle impacts into the rear ends of trucks and trailers in fatal crashes met the UMTRI definition of “offset crashes,”
Stated differently, the definition of an offset crash in the 2013 UMTRI Study includes crashes that would not have been considered low overlap crashes under IIHS's test program (as they had greater than 30 percent overlap of the front end of the vehicle). NHTSA reviewed a sample of the crash cases which were identified as “offset crashes” in the 2013 UMTRI Study. Based on the damage to the rear impact guard and the damage to the front end of the impacting vehicle in each of these offset crash cases, NHTSA determined that in many crashes the front end of the striking vehicle engaged the portion of the rear impact guard containing the vertical member, and therefore were not “low overlap” crashes as would have been considered under the IIHS protocol (crashes with 30 percent or less of the impacting vehicle front end overlapping the rear width of the trailer). This review indicated that a substantial number of cases identified as “offset crashes” in the 2013 UMTRI Study were not “low overlap” crashes like those in the IIHS 30 percent overlap crash test.
The 2013 UMTRI Study found that there are annually 72 fatalities in light vehicle crashes into the rear of trailers that result in PCI. According to this study, almost 40 percent of the impacts by light vehicles were “offset,” meaning that they occurred on the outer left or right third of a trailer's rear. For trailers
The 2013 UMTRI Study also found that only 26 percent of crashes into the rear of trailers were at relative impact speeds of 56 km/h (35 mph) or less. Though the 2013 UMTRI Study found that the crash speeds in offset crashes were higher than those in non-offset crashes, NHTSA used 26 percent to estimate the number of crashes into the rear of trailers with 30 percent or lower overlap that were at crash speeds 56 km/h (35 mph) or lower. Rear impact guards may not be able to mitigate all fatalities in crashes into the rear of trailers with relative velocity of 56 km/h (35 mph) or less because some crashes may be due to circumstances other than underride (
To prevent PCI in 30 percent overlap crashes, designs would have to either: (a) add additional vertical members at the lateral edge of the rear impact guard that connect to the trailer's transverse floor beam and strengthen the transverse floor beam of the trailer to withstand the loads transmitted from these vertical members at the edge of the guard; or (b) considerably strengthen the rear impact guard member so it would not deform locally in the 30 percent overlap crash. In these circumstances all the loads will still be taken up by the longitudinal chassis rails. This means that both these approaches would add significant weight to the vehicles because they involve adding more vertical members, strengthening the floor beams, or strengthening the guard itself.
Currently, there are 4 trailer manufacturers that offer rear impact guards that prevent PCI in all three IIHS crash test conditions (35 mph crash of a passenger vehicle with (1) full overlap, (2) 50 percent overlap and (3) 30 percent overlap with the rear of the trailer) as standard equipment. In 2020, the total trailer output of these 4 manufacturers is about 28 percent of the total number of trailers produced in 2020 (211,807).
NHTSA reviewed the rear impact guard offerings in the trailer industry. The incremental cost and weight increase of a trailer with a rear impact guard that prevents PCI of passenger vehicles in all three overlap conditions (full, 50 percent, and 30 percent overlap) compared to an equivalent trailer by the same manufacturer with a rear impact guard that meets the performance requirements of this final rule
Stoughton Trailer, a trailer manufacturer, produces trailers with rear impact guards that prevent PCI in all three overlap conditions at 56 km/h (35 mph) as standard equipment and notes on its website that its rear impact guards do not add additional weight, cost, or negatively impact aerodynamics (presumably compared to rear impact guards that would meet this final rule requirements).
There are some unique rear impact guard designs that meet the performance requirements in this final rule and are also able to mitigate PCI in 30 percent overlap crashes without significant increase in weight. However, these unique designs may have restrictions in intermodal operations at loading docks
There are 211,807 trailers produced in 2020
In addition, the average weight increase of 35 kg (77 lb) from installing a guard that could mitigate PCI in a 30 percent overlap crash would increase fuel consumption. With 192,000 class 8 truck annual sales,
NHTSA is required by Section 1 of Executive Order 12866 to conduct a benefit cost analysis of any proposed regulatory requirements.
For the above reasons, we have determined that an FMVSS that requires vehicles to provide rear impact protection in 56 km/h (35 mph) full-frontal, 50 percent overlap, and 30 percent overlap not to be reasonable or practicable. We conclude that such a revision would not meet the requirements of Section 30111(a) and (b) of the Safety Act for issuance of Federal motor vehicle safety standards. Accordingly, we have decided to refrain from adopting a requirement for a 30 percent overlap crash at this time.
However, as explained above, the Federal standards act as a floor, not a ceiling, to establish the minimum level of performance that meet the safety needs presented by the data. FMVSS are written in terms of minimum performance requirements for motor vehicles or motor vehicle equipment to protect the public against unreasonable risk of injury and death in crashes. Manufacturers have flexibility in design as long as their products comply with applicable FMVSS. There are rear impact guard designs in the current trailer and semitrailer market that prevent PCI in all three crash conditions described in Section 23011(b)(1)(A) of BIL: (1) full overlap crash, (2) 50 percent overlap crash, and (3) 30 percent overlap crash at 56 km/h impact speed. While data do not support the agency's requiring these guards for all vehicles, this final rule does not preclude these designs from being on the trailer and semi-trailer market.
Some commenters suggested design changes to rear impact guards that they viewed as increasing protection in low overlap conditions. Network requested that NHTSA require a barrier width within 100 mm of the trailer's outer frame; Advocates similarly stated that if rear impact guards were extended, protection against underride would be enhanced. Network and Ms. Wood also suggested that rear impact guards have angled struts attached to the ends of the guard. Batzer recommended that guards have support at their corners, while Seven Hills stated that a solution could be using three- or four-vertical support configurations. The VT Group suggested that stronger material selection for the horizontal member can improve a rear impact guard's load capability during low overlap crashes.
In response, NHTSA does not believe that it is reasonable, or appropriate, to mandate in this rulemaking that rear impact guards have designs of the specificity suggested by the commenters. The design of rear impact guards is dependent on trailer geometry and structure and we do not wish to unnecessarily restrict the flexibility of manufacturers to design appropriate guards. NHTSA also does not believe that it should mandate the materials used in constructing rear impact guards, as our standards are performance oriented.
CMVSS No. 223 allows for compliance testing on half of a symmetric rear impact guard through an application of a 175,000 N distributed load at the P3 location. NHTSA determined that half guard testing was not needed in FMVSS No. 223 and explained in the NPRM why it did not propose the inclusion of half-guard testing in the proposal.
Commenters on this issue all argued in favor of including an option allowing for testing of half of the rear impact guard. TTMA, Strick, and Mr. Young stated their general belief that testing on a half-guard will produce the same result as testing on the full guard. They further suggested that half-guard testing
NHTSA reviewed the comments and confirms its earlier decision that a half-guard testing option is not needed in FMVSS No. 223. As noted in the NPRM, CMVSS No. 223 allows for half-guard testing because at the time the standard was written, guard manufacturers lacked the equipment to apply a distributed force of 350,000 N as would be required in a test of the full guard. CMVSS No. 223 thus allowed manufacturers to use then existing equipment to certify rear impact guards through half-guard testing. No commenter suggested that this rationale should be applied to FMVSS No. 223 or that manufacturers presently lack the capability to conduct tests on a full guard. Significantly, there is also an absence of data showing that half-guard testing provides results representative of full guard performance.
NHTSA notes that the test procedures included in an FMVSS specify the compliance tests that NHTSA conducts. Manufacturers may use other reasonable methods to certify the compliance of their vehicles or equipment, provided that their vehicle or motor vehicle equipment complies. In other words, any changes to FMVSS Nos. 223 and 224 would not directly affect how manufacturers choose to structure their guard development processes, as long as the vehicle or equipment complies. If manufacturers believe that testing on half-guards will allow them to better iterate designs, the standard does not prevent them from doing so. The guard must meet the FMVSS when tested by NHTSA according to the test procedures in the standard.
The NPRM did not propose to require used trailers be retrofitted with CMVSS No. 223 compliant rear impact guards, as NHTSA had estimated in the NPRM that the cost of retrofitting all applicable FMVSS compliant trailers far exceeds the total benefits from such a retrofit requirement.
Many commenters disagreed with NHTSA's decision not to propose that all trailers be retrofitted with newly compliant guards. Network commented that older guards can be easily fixed. Messrs. Kiefer and Young remarked that more lives would be saved if NHTSA required retrofitting. TSC remarked that NHTSA underestimated the potential benefits to requiring trailers be retrofitted. TSC stated that NHTSA based its analysis on the number of light vehicle crashes into the rear of trailers that resulted in PCI, which TSC claimed came from data sources that often do not report on intrusion. Conversely, ATA stated that retrofitting trailers will have a negative cost-benefit ratio, stating that there are more than 11.7 million commercial trailers registered in the states in 2012, many of which are not used on a regular basis. ATA argued that retrofitting them would create significant costs without any corresponding benefit.
As further detailed in the Final Regulatory Evaluation (FRE) accompanying this final rule, NHTSA evaluated requiring all trailers to be retrofitted with CMVSS No. 223 compliant guards. This evaluation suggests that such a requirement would not be practicable or cost-effective. Further, vehicle owners would need to assess each trailer-guard combination individually to determine whether an upgraded guard would be compatible with the used trailer, accounting for age and condition of the vehicle. A used trailer may not be structurally capable of accommodating a new upgraded guard without the addition of unique parts. Owners may not have the technical expertise to know if an upgraded rear impact guard installed on a used trailer would be able to meet the intended performance level.
The NPRM proposed a lead time of two years following the date of publication of a final rule. NHTSA received mixed comments on the proposed lead time. Mr. Young and Network remarked that given most trailers already meet the proposed requirements, a two-year lead time was unnecessary. Mr. Young stated that NHTSA instead should require immediate compliance. TTMA commented that, for “nearly all trailer models,” TTMA members have the capability to manufacture to the proposed standard but suggested that manufacturers of other models may have to develop and test new rear impact guards. TTMA suggested a lead time that provides for an optional early compliance date may be worthwhile.
Section 23011(b)(1)(B) of BIL provides that the regulations promulgated under subparagraph (A) shall require full compliance with each FMVSS revised pursuant to those regulations not later than 2 years after the date on which those regulations are promulgated.
After considering the comments and Section 23011(b)(1)(B) of BIL, NHTSA is adopting a two-year compliance date. The agency estimates that 94 percent of new trailers sold in the United States subject to FMVSS Nos. 223 and 224 already comply with the requirements of this final rule. This means, however, that there remain many trailer manufacturers who will need time and resources to design and produce new rear impact guards that are compliant with this final rule. Establishing too short a lead time will disadvantage these manufacturers, many of which may be small manufacturers. NHTSA proposed a two-year lead time for the 1996 final rule and the agency believes this length of time is consistent with BIL and remains appropriate. Manufacturers may choose to comply with the new standards earlier.
For the NPRM, NHTSA developed a Preliminary Regulatory Evaluation (PRE) to estimate the benefits and cost of this rulemaking. We first estimated the annual number of fatalities and injuries in light vehicle crashes with PCI into the rear of trailers that could be prevented by the rulemaking.
CMVSS No. 223 guards may not be able to mitigate all fatalities in crashes into the rear of trailers with relative velocity of 56 km/h (35 mph) or less because some crashes may involve low overlap (30 percent or less) and some fatalities may be due to circumstances other than underride (
Since a number of vehicles currently meet CMVSS No. 223, this benefit must be reduced by the proportion of new trailers already compliant with CMVSS No. 223, which the agency estimated to be 93 percent. Assuming 13 percent effectiveness of these guards in fatal crashes with PCI into the rear of trailers, the agency estimated that about 0.66(= 72 × (1−0.93) × 0.13) lives would be saved annually by requiring all applicable trailers to be equipped with CMVSS No. 223 compliant guards. NHTSA estimated that a total of 2.7 serious injuries would also be prevented annually with this rear impact guard rule. Including fatalities and serious injuries, the agency estimated that 1.4 equivalent lives would be saved annually.
To determine the costs of the final rule, NHTSA considered the incremental fleet cost of equipping all applicable trailers with CMVSS No. 223 rear impact guards and the increased fuel costs resulting from the added weight CMVSS No. 223 compliant guards would place on trailers.
The average cost of a Canadian compliant rear impact guard was estimated as $492. The incremental cost of equipping CMVSS No. 223 compliant rear impact guards on applicable new trailers (those that are subject to FMVSS No. 223) was estimated as $229 per trailer. There were 243,873 trailers produced in 2013,
NHTSA determined that upgrading from the FMVSS No. 223 compliant guard to the CMVSS No. 223 compliant guard would add an average incremental weight of 22.2 kg (48.9 lb) to the trailer, thereby reducing the overall fuel economy during the lifetime of the trailer. The incremental increase in lifetime fuel cost for a 22.2 kg (48.9 lb) weight increase of a trailer was estimated to be $1,042.2 and $927.7 discounted at 3 percent and 7 percent, respectively. The annual incremental lifetime fuel cost of equipping all applicable trailers with CMVSS No. 223 rear impact guards was estimated as $9.2 million and $8.2 million in 2013 dollars discounted at 3 percent and 7 percent, respectively.
The agency estimated that the net cost per equivalent lives saved would be $9.1 million and $9.5 million in 2013 dollars discounted at 3 percent and 7 percent, respectively. At 3 percent discount rate, the net benefit of the proposed rule would be $0.59 million. At 7 percent discount rate, the net benefit of the proposed rule would be $0.13 million.
Safety is of utmost importance, and NHTSA pursues such safety to the degree possible in accordance with its statutory authority and as instructed by Executive order. Under the Safety Act, the reasonableness and practicability of a standard (both technologically and economically) must be considered. Under E.O. 12866, agencies are instructed to undertake a benefit-cost analysis to inform its rulemaking decisions to ensure agency regulations protect and improve the public's health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society. Thus, in response to commenters who urge us to adopt safety standards without regard to costs, we cannot do so under the Safety Act and the E.O.
NHTSA also cannot measure safety-related benefits categorically differently from costs, as requested by several commenters. Under E.O. 12866, as specified in OMB Circular A-4, agencies must quantify and value safety impacts to compare them to the costs of the regulation. Agencies do so by calculating the value of the loss of life using a metric called the Value of a Statistical Life (VSL). The VSL includes costs such as medical care, reduced income, and the effects fatalities and injuries may have on family members. NHTSA uses the VSL to determine the monetary value of reducing fatalities and injuries, which NHTSA then compares to estimated costs of a regulation. NHTSA cannot arbitrarily increase the value of benefits outside of this framework.
Some commenters also raised issues with what they viewed as specific shortcomings in the PRE's benefit-cost analysis. Some believed NHTSA did not properly consider all necessary variables in its analysis. For example, Network stated that NHTSA did not consider new technology or what it claimed to be the negative consumer choices fueled by fear to adopt smaller and lighter fuel-efficient vehicles due to increased crash incompatibility. Mr. Karth believed NHTSA should consider “what a parent would pay to protect their children,” the “impact upon a family if a bread-winner is injured or lost,” and “the medical expenses to care for a severely injured individual.” Ms. Karth believed NHTSA's benefit-cost
NHTSA has prepared a Final Regulatory Evaluation (FRE) for this final rule and has placed a copy of the FRE in the docket.
NHTSA believes that it has properly calculated the applicable benefits and costs to its rule using the appropriate variables. We sought to estimate the benefits of the rule by determining the number of lives and serious injuries it would prevent over the current situation and then monetize that number using the VSL value. We then compared these benefits with the cost of the rule, the increased material and fuel costs that requiring rear impact guard upgrades would necessitate. These variables encompass the benefits and costs that this rule would impose. In the absence of sufficient information to quantify changes in consumer behavior, we do not believe that factoring in variables such as negative consumer choices resulting from the fear of underride collisions is appropriate.
Some comments remarked on what were perceived to be NHTSA's overestimation of projected costs. Mr. Karth questioned NHTSA's calculations as being overstated, particularly emphasizing that the fuel costs NHTSA projected in the PRE did not turn out to be accurate. The commenter also believed NHTSA's benefit-cost analysis is faulty because manufacturers have been willing to “provide a better rear impact guard even without regulation.” Ms. Karth commented that customers have shown they are willing to pay for trailers to be safer, and manufacturers have shown that they are willing to respond to that demand and produce safer trailers. Network believed that NHTSA used outdated costs when analyzing how much an upgraded rear impact guard would cost. Mr. Brown indicated that the costs of the regulation could “be distributed to many different people and products.”
In response to Mr. Karth's comment regarding NHTSA's estimated fuel costs from the PRE, NHTSA followed well established procedures to estimate incremental fuel costs due to increased weight of the rear impact guards and the most recent information on fuel price. NHTSA considered the most up-to-date data in developing this final rule, updated its variables where necessary in the FRE and used the most current data available to inform this rulemaking.
Some commentators stated that NHTSA underestimated the benefits of improved rear impact guards. According to Advocates, NHTSA based its calculation of the proposed rule's benefits on the agency's belief that only 26 percent of light vehicle occupant fatal crashes into the rear of trailers with rear impact guards that resulted in PCI occur at speeds of 35 mph or less. Advocates believed that using this number “significantly reduced the agency's estimate of the number of crashes and occupants that could be aided by the upgrade in rear protection guards” because it is based on speed estimates, which Advocates considers “notoriously inaccurate.” TSC similarly commented that NHTSA derived speed estimates from “inconsistent, unreliable sources” and failed to count instances of PCI properly, resulting in NHTSA's underestimating the benefits of the intended rule.
The estimated benefits and costs of the FRE are along the same lines as those in the PRE. In the FRE, NHTSA determined that 94 percent of applicable new trailers are now equipped with rear impact guards that are compliant with the updated FMVSS No. 223 requirements. Additionally, NHTSA updated the value of statistical life (VSL) in accordance with the March 2021 Department of Transportation revised guidance regarding the treatment of the economic value of a statistical life in U.S Department of Transportation regulatory analyses (2021 Update).
Assuming 13 percent effectiveness of these guards in fatal crashes with PCI into the rear of trailers, the agency estimates that about 0.56 (= 72 × (1−0.94) × 0.13) lives would be saved annually by requiring all applicable trailers to be equipped with CMVSS No. 223 compliant guards. The agency also estimates that a total of 3.5 serious injuries would be prevented annually with the rear impact guard final rule. Including fatalities and serious injuries,
NHTSA estimates the annual incremental fleet cost of equipping all applicable trailers with CMVSS No. 223 rear impact guards to be $2.1 million based on an average increase in cost of $254.35 per guard. The annual incremental lifetime fuel cost, based on an average weight increase of 48.9 pound per vehicle, is estimated to be $5.59 million and $4.43 million discounted at 3 percent and 7 percent, respectively. Therefore, the total cost of the final rule, including material and fuel costs, is $7.69 million discounted at 3 percent and $6.54 million discounted at 7 percent.
The agency estimates that the cost per equivalent life saved is $6.77 million and $7.25 million discounted at 3 percent and 7 percent, respectively, as shown in Table 5. A summary of the regulatory cost and net benefit of the final rule at the 3 percent and 7 percent discount rates are presented in Table 6. At 3 percent discount rate, the net benefit of the final rule is $6.04 million. At 7 percent discount rate, the net benefit of the final rule is $4.36 million.
For further information regarding the aforementioned cost and benefit estimates, please reference the FRE that NHTSA placed in the docket.
We have considered the impacts of this final rule under Executive Orders 12866 and 13563, and the Department of Transportation's administrative rulemaking procedures. This final rule has been determined to be nonsignificant under E.O. 12866 and was not reviewed by OMB. We have discussed comments to the PRE and summarized the estimated costs, benefits, and cost-effectiveness of this final rule in the above section of this preamble, and in the FRE. NHTSA estimates that this final rule will save approximately 1.14 and 0.9 equivalent lives annually discounted at 3 percent and 7 percent, respectively. The total cost of the final rule, including material and fuel costs, is estimated to be $7.69 million discounted at 3 percent and $6.54 million discounted at 7 percent. The net cost per equivalent lives saved is $6.77 million and $7.25 million discounted at 3 percent and 7 percent, respectively. NHTSA's FRE fully discusses the estimated costs, benefits, and other impacts of this rule.
Consistent with E.O. 13563, NHTSA is amending FMVSS Nos. 223 and 224 because of retrospectively analyzing the effectiveness of the standards. NHTSA realized the merits of CMVSS No. 223 in addressing the same safety need that is the subject of FMVSS Nos. 223 and 224 and undertook this rulemaking to adopt upgraded strength and other requirements of CMVSS No. 223.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
I certify that this rule will not have a significant economic impact on a substantial number of small entities. NHTSA estimates there are 354 manufacturers of trailers in the U.S., 331 of which are small businesses. The impacts of this final rule on small trailer manufacturers would not be significant. This rule will make changes to the strength requirements applying to rear impact guards but will not affect the method by which small trailer manufacturers can certify compliance with FMVSS Nos. 223 and 224.
FMVSS No. 223, an equipment standard, specifies strength and energy absorption requirements in quasi-static force tests of rear impact guards sold for installation on new trailers and semitrailers. FMVSS No. 224, a vehicle standard, requires new trailers and semitrailers with a GVWR of 4,536 kg (10,000 lb) or more to be equipped with a rear impact guard meeting FMVSS No. 223. NHTSA established the two-standard approach to provide underride protection in a manner that imposes reasonable compliance burdens on small trailer manufacturers.
Under FMVSS No. 223, the guard may be tested for compliance while mounted to a test fixture or to a complete trailer. FMVSS No. 224 requires that the guard be mounted on the trailer or semitrailer in accordance with the instructions provided with the guard by the guard manufacturer. Under this approach, a small manufacturer that produces relatively few trailers can certify its trailers to FMVSS No. 224 without feeling compelled to undertake destructive testing of what could be a substantial portion of its production. The two-standard approach was devised to provide small manufacturers a
NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.
NHTSA has examined this final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule will not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under chapter 301, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under chapter 301. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to Executive Orders 13132 and 12988, NHTSA has considered whether this final rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation. To this end, the agency has examined the nature (
When promulgating a regulation, Executive Order 12988 specifically requires that the agency must make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
Pursuant to Executive Order 12988, NHTSA notes as follows: The preemptive effect of this final rule is discussed above in connection with Executive Order 13132. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Before seeking OMB approval, Federal agencies must provide a 60-day public comment period and otherwise consult with members of the public and affected agencies concerning each collection of information requirement. There are no PRA requirements associated with this final rule.
Under the National Technology Transfer and Advancement Act of 1995 (NTIAA) (Pub. L. 104-113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. Voluntary consensus standards are technical standards (
This final rule will adopt requirements of CMVSS No. 223. NHTSA's consideration of CMVSS No. 223 accords with the principles of NTTAA, in that NHTSA is considering
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). After analyzing the costs of this final rule, it will not result in expenditures by any of the aforementioned entities of over $100 million annually.
The policy statement in section 1 of Executive Order 13609 provides in part that the regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. The E.O. states that, in some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. The E.O. states that, in meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation, and that international regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
This final rule adopts requirements of CMVSS No. 223 to upgrade FMVSS Nos. 223 and 224. NHTSA recognizes that these requirements are different from those in the European standard, ECE R.58, “Rear underrun protective devices (RUPD); Vehicles with regard to the installation of an RUPD of an approved vehicle; Vehicles with regard to their rear underrun protection.”
Executive Order 12866 require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Has the agency organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that is not clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could the agency improve clarity by adding tables, lists, or diagrams?
• What else could the agency do to make this rulemaking easier to understand?
If you have any responses to these questions, please send them to NHTSA.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the hearing at the beginning of this document to find this action in the Unified Agenda.
Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements, Tires.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as follows:
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95.
The revisions and additions read as follows:
S3.
S4. * * *
S5.2
S5.2.1
(a) A force of 50,000 N applied in accordance with S6.6 of this section at test location P1 on either the left or the right side of the guard as defined in S6.4(a) of this section.
(b) A force of 50,000 N applied in accordance with S6.6 of this section at test location P2 as defined in S6.4(b) of this section.
(c) A uniform distributed force of at least 350,000 N applied across the horizontal member, as specified in S6.8 of this section and in accordance with S6.6 of this section.
S5.2.2
(a) A guard, other than a hydraulic guard or one installed on a tanker trailer, when subjected to a uniform distributed load applied in accordance with S6.6(c) of this section:
(1) Shall absorb by plastic deformation at least 20,000 J of energy within the first 125 mm of deflection without eliminating any load path that existed before the test was initiated; and
(2) Have a ground clearance not exceeding 560 mm, measured at each support to which the horizontal member is attached, as shown in Figure 4 of this section, after completion of the load application.
(b) A guard, other than a hydraulic guard or one installed on a tanker trailer, that demonstrates resistance to a uniform distributed load greater than 700,000 N applied in accordance with S6.6(b) of this section, need not meet the energy absorption requirements of S5.2.2(a) of this section but must have a ground clearance not exceeding 560 mm at each vertical support to which the horizontal member is attached after completion of the 700,000 N load application.
S5.5 * * *
(c) An explanation of the method of attaching the guard to the chassis of each vehicle make and model listed or to the design elements specified in the instructions or procedures. The principal aspects of vehicle chassis configuration that are necessary to the proper functioning of the guard shall be specified including the maximum allowable vertical distance between the bottom edge of the horizontal member of the guard and the ground to ensure post-test ground clearance requirements are met. If the chassis strength is inadequate for the guard design, the instructions or procedures shall specify methods for adequately reinforcing the vehicle chassis. Procedures for properly installing any guard attachment hardware shall be provided.
S6.
S6.3
S6.4
(a) Point Load Test location P1 is the point on the rearmost surface of the horizontal member of the guard that:
(b) Point Load Test location P2 is the point on the rearmost surface of the horizontal member of the guard that:
S6.5
(a) The center point of the contact surface of the force application device is aligned with and touching the guard test location, as defined by the specifications of S6.4 of this section for the point load test locations, and S6.8 of this section for the uniform distributed load test location.
(c) If the guard is tested on a rigid test fixture, the vertical distance from the bottom edge of the horizontal member to the ground at the location of each support to which the horizontal member is attached, shall be measured.
S6.6
(b) If conducting a strength test to satisfy the requirement of S5.2.1 or S5.2.2(b) of this section, the force is applied until the forces specified in S5.2.1 or S5.2.2(b) of this section have been exceeded, or until the displacement of the force application device has reached at least 125 mm whichever occurs first.
(c) If conducting a test to be used for the calculation of energy absorption levels to satisfy the requirement of S5.2.2(a) of this section, apply a uniform distributed force to the guard until displacement of the force application device, specified in S6.7 of this section, has reached 125 mm. For calculation of guard energy absorption, the value of force is recorded at least ten times per 25 mm of displacement of the contact surface of the loading device. Reduce the force until the guard no longer offers resistance to the force application device. Produce a force vs. deflection diagram of the type shown in Figure 2 of this section using this information. Determine the energy absorbed by the guard by calculating the shaded area bounded by the curve in the force vs. deflection diagram and the abscissa (X-axis).
S6.7
S6.8
(a) Is centered in the longitudinal vertical plane passing through the center of the guard's horizontal member; and
(b) Is centered 50 mm above the bottom of the guard.
S6.9
(a) For the test device attached to a complete trailer as specified in S6.2 of this section, the ground clearance of the guard at the vertical supports to which the horizontal member is attached shall be measured after completion of the uniform distributed load test in accordance with S6.6(b) or S6.6(c) of this section.
(b) For the test device attached to a rigid test fixture as specified in S6.2 of this section, the vertical distance from the ground to the bottom edge of the horizontal member at the vertical supports to which the horizontal member is attached shall be measured after completion of the uniform distributed load test in accordance with S6.6(b) or S6.6(c) of this section and subtracted from the corresponding ground clearance measured before the load application in accordance with S6.5(c) of this section. The difference in ground clearance before and after the load application is added to the allowable maximum vertical distance between the bottom edge of the horizontal member of the guard and the ground as specified in S5.5(c) of this section, to obtain the ground clearance after completion of the uniform distributed load test.
S3.
S4. * * *
(1) Tail lamps;
(2) Rubber bumpers;
(3) Hinges and latches; and
(4) Flexible aerodynamic devices capable of being folded to within 305 mm from the transverse vertical plane tangent to the rear most surface of the horizontal member for vertical heights below 1,740 mm above ground and, when positioned as they normally are when the trailer is in motion, are located forward of the transverse plane that is tangent to the rear bottom edge of the horizontal member and intersecting a point located 1,210 mm rearward of the horizontal member and 1,740 mm above the ground.
Issued under authority delegated in 49 CFR 1.95 and 501.5.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary final rule.
NMFS adjusts the 2022 baseline quotas for U.S. North and South Atlantic swordfish based on available underharvest of the 2021 adjusted U.S. quotas. This action is necessary to implement binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This action to adjust the quotas is only temporary and will be effective through December 31, 2022. On January 1, 2023, the unadjusted annual baseline allocations of North and South Atlantic swordfish will renew and be available to harvest consistent with HMS regulations.
Effective August 15, 2022, through December 31, 2022.
Supporting documents, including environmental assessments and environmental impact statements, as well as the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) and its amendments may be downloaded from NOAA Fisheries' HMS Division website at
Erianna Hammond (
Atlantic HMS fisheries, including swordfish fisheries, are managed under the authority of ATCA (16 U.S.C. 971
Consistent with the North Atlantic swordfish quota regulations at § 635.27(c), NMFS adjusts the U.S. annual North Atlantic swordfish quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT limits and when catch information for the prior year is available. Under ICCAT Recommendation 16-03, as amended by Recommendation 21-02, the U.S. North Atlantic swordfish baseline annual quota for 2018 through 2022 is 2,937.6 metric tons (mt) dressed weight (dw) (3,907 mt whole weight (ww)). The maximum underharvest that the United States may carry forward from one year to the next is 15 percent of the baseline quota, which equals 440.6 mt dw (586 mt ww) for the United States. In 2021, the adjusted North Atlantic swordfish quota was 3,378.2 mt dw (2,937.6 mt dw baseline quota + 440.6 mt dw carried over from 2020).
Preliminary total 2021 U.S. North Atlantic swordfish catch, which includes landings and dead discards, was 961.8 mt dw, which is an underharvest of 2,416.4 mt dw of the 2021 adjusted quota. This underharvest exceeds the 440.6-mt dw underharvest carryover limit allowed under Recommendation 21-02. Thus, NMFS is carrying forward 440.6 mt dw, the maximum carryover allowed. The 2,937.6-mt dw baseline quota is increased by the underharvest carryover of 440.6 mt dw, resulting in a final adjusted North Atlantic swordfish quota for the 2022 fishing year of 3,378.2 mt dw (2,937.6 + 440.6 = 3,378.2 mt dw). From that adjusted quota, 50 mt dw will be allocated to the Reserve category for inseason adjustments and research, and 300 mt dw will be allocated to the Incidental category, which covers recreational landings and landings by incidental swordfish permit holders, in accordance with regulations at § 635.27(c)(1)(i). This results in an allocation of 3,028.2 mt dw (3,378.2−50−300 = 3,028.2 mt dw) for the directed category, split equally between two seasons in 2022 (January through June, and July through December) (Table 1).
Consistent with the South Atlantic swordfish quota regulations at § 635.27(c), NMFS adjusts the U.S. annual South Atlantic swordfish quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT limits when catch information for the prior year is available. Under ICCAT Recommendation 17-03 as amended by Recommendation 21-03, the U.S. South Atlantic swordfish baseline annual quota for 2018 through 2022 is 75.2 mt dw (100 mt ww) and the amount of underharvest that the United States can carry forward from one year to the next is 100 percent of the baseline quota (75.2 mt dw). Under Recommendations 17-03 and 21-03, the United States continues to transfer a total of 75.2 mt dw (100 mt ww) to other countries. These transfers are 37.6 mt dw (50 mt ww) to Namibia, 18.8 mt dw (25 mt ww) to Côte d'Ivoire, and 18.8 mt dw (25 mt ww) to Belize.
Since 2014, the annual U.S. adjusted South Atlantic swordfish quota has been
U.S. fishermen landed no South Atlantic swordfish in 2021. The United States had 75.1 mt dw of quota available for accounting in 2021. Therefore, 75.1 mt dw of underharvest is available to carry over to 2022. NMFS is carrying forward 75.1 mt dw to be added to the 75.2-mt dw baseline quota. The quota is then reduced by the 75.1 mt dw of annual international quota transfers outlined above, including the minor reduction in the quota transfer to Belize for 2022, resulting in an adjusted South Atlantic swordfish quota of 75.2 mt dw for the 2022 fishing year (Table 1).
NMFS is issuing this rule pursuant to 305(d) of the Magnuson-Stevens Act. The NMFS Assistant Administrator (AA) has determined that this final rule is consistent with the 2006 Consolidated Atlantic HMS FMP and amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.
Pursuant to section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)), the AA finds that it is unnecessary and would be contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the reasons described below.
The rulemaking process for the 2016 North and South Atlantic Swordfish Quota Adjustment Rule (81 FR 48719, July 26, 2016) specifically provided prior notice of, and accepted public comment on, the formulaic quota adjustment processes for the swordfish fisheries and the manner in which they occur. These processes have not changed, and the application of these formulas in this action does not have discretionary aspects requiring additional agency consideration. Thus, it would be redundant to provide an opportunity for public comment on this action. There are no new quotas for 2022, and the quota formulas are the same as in previous years. NMFS therefore is issuing this temporary final rule to adjust the North and South Atlantic swordfish quotas for 2022 without prior notice and an additional opportunity for comment. Actions to adjust the swordfish quotas based on the previous year's underharvest occur annually and the affected community expects similar adjustments in 2022. This action to adjust the 2022 quotas could not occur earlier in the year because preliminary 2021 landings data were not available until recently.
This action is exempt from review under Executive Order 12866.
This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This action approves and implements Framework Adjustment 63 to the Northeast Multispecies Fishery Management Plan. This rule sets or adjusts catch limits for 5 of the 20 multispecies (groundfish) stocks, adjusts recreational measures for Georges Bank cod, and revises the default specifications process. This action is necessary to respond to updated scientific information and to achieve the goals and objectives of the fishery management plan. The final measures are intended to help prevent overfishing, rebuild overfished stocks, achieve optimum yield, and ensure that management measures are based on the best scientific information available.
Effective July 15, 2022.
Copies of Framework Adjustment 63, including the draft Environmental Assessment, the Regulatory Impact Review, and the Regulatory Flexibility Act Analysis prepared by the New England Fishery Management Council in support of this action, are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at:
Liz Sullivan, Fishery Policy Analyst, phone: 978-282-8493; email:
The New England Fishery Management Council adopted Framework Adjustment 63 to the Northeast Multispecies Fishery Management Plan (FMP) on December 8, 2021. The Council submitted Framework 63, including an EA, for NMFS approval on March 28, 2022. We published a proposed rule for Framework 63 on April 20, 2022 (87 FR 23482), with a 15-day comment period that closed on May 5, 2022.
Under the Magnuson-Stevens Act, we approve, disapprove, or partially approve measures that the Council proposes, based on consistency with the Act and other applicable law. We review proposed regulations for consistency with the fishery management plan, plan amendment, the Magnuson-Stevens Act and other applicable law, and publish the proposed regulations, solicit public comment, and promulgate the final regulations. We have approved all of the measures in Framework 63 recommended by the Council, as described below. The measures implemented in this final rule:
• Set shared U.S./Canada quotas for Georges Bank (GB) yellowtail flounder and eastern GB cod and haddock for fishing years 2022 and 2023;
• Set specifications, including catch limits, for five groundfish stocks: Gulf of Maine (GOM) cod (2022-2024), GB yellowtail flounder (2022-2023), and GB cod, GB haddock, and white hake (2022);
• Adjust recreational measures for GB cod;
• Modify the regulatory process for the Regional Administrator to adjust recreational measures for GB cod to apply to the 2023 and 2024 fishing years, and;
• Modify the current process for default specifications.
This action also makes regulatory corrections that are not part of Framework 63, but that are implemented under our section 305(d) authority in the Magnuson-Stevens Act to make changes necessary to carry out the FMP. We are making these corrections in conjunction with the Framework 63 measures for expediency purposes. These corrections are described in Regulatory Corrections under Secretarial Authority.
As described in the proposed rule, eastern GB cod, eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada under the United States/Canada Resource Sharing Understanding. This action adopts shared U.S./Canada quotas for these stocks for fishing year 2022 based on 2021 assessments and the recommendations of the Transboundary Management Guidance Committee (TMGC) and consistent with the Council's Scientific and Statistical Committee (SSC) recommendations. Framework 63 sets the same shared quotas for a second year (
The regulations implementing the U.S./Canada Resource Sharing Understanding require deducting any overages of the U.S. quota for eastern GB cod, eastern GB haddock, or GB yellowtail flounder from the U.S. quota in the following fishing year. Based on preliminary data through April 27, 2022, the U.S. fishery did not exceed its 2021 fishing year quota for any of the shared stocks. However, if final catch information for the 2021 fishing year indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we will reduce the respective U.S. quotas for the 2022 fishing year in an adjustment action, as soon as possible in the 2022 fishing year. If any fishery that
This rule adopts catch limits for GOM cod for the 2022-2024 fishing years and for GB cod for the 2022 fishing year, based on stock assessments completed in 2021; a catch limit for white hake for fishing year 2022, based on the revised rebuilding plan implemented by Framework 61; and a catch limit for GB yellowtail flounder for fishing years 2022-2023. Framework 59 (85 FR 45794; July 30, 2020) previously set 2022 quotas for seven groundfish stocks based on assessments conducted in 2019, which would remain in place, with a small change to the U.S. ABC for GB haddock, which is the amount available to the U.S. fishery after accounting for Canadian catch, to reflect the 2022 TMGC recommendation for that stock. Framework 61 (86 FR 40353; July 28, 2021) previously set 2022-2023 quotas for the remaining nine groundfish stocks based on assessments conducted in 2020, and those would also remain in place. The catch limits implemented in this action, including overfishing limits (OFL), acceptable biological catches (ABC), and annual catch limits (ACL), are listed in Tables 2 through 10. A summary of how these catch limits were developed, including the distribution to the various fishery components, was provided in the proposed rule and in Appendix II (Calculation of Northeast Multispecies Annual Catch Limits, FY 2022-FY 2024) to the EA, and is not repeated here. The sector and common pool sub-ACLs implemented in this action are based on fishing year 2022 potential sector contributions (PSC) and final fishing year 2022 sector rosters.
At the start of the 2022 fishing year, we allocated stocks to each sector, based on the catch limits set by prior frameworks. This rule updates the ACE allocated to sectors based on the catch limits approved in Framework 63, fishing year 2022 PSC, and final fishing year 2022 sector rosters. We calculate a sector's allocation for each stock by summing its members' PSC for the stock and then multiplying that total percentage by the commercial sub-ACL for that stock. The process for allocating ACE to sectors is further described in the final rule allocating ACE to sectors for fishing year 2022 (87 FR 24875; April 27, 2022) and is not repeated here. Table 11 shows the cumulative PSC by stock for each sector for fishing year 2022. Tables 12 and 13 show the ACEs allocated to each sector for fishing year 2022, in pounds and metric tons, respectively. We have included the common pool sub-ACLs in tables 11 through 13 for comparison.
This action sets the GB cod recreational catch target to 75 mt. The values of the state and other sub-components for GB cod are based, in part, on this catch target (see Appendix II of the EA).
Framework 63 also adjusts the recreational measures for GB cod, in order to reduce mortality to stay below the GB cod recreational catch target. Combined with the reduction in catch target, these measures are intended to reduce mortality on GB cod and allow for the promotion of GB cod stock rebuilding. These measures apply to both private and for-hire recreational vessels, and would remain in place unless modified. Table 14 shows the final GB cod recreational measures, which are approved as proposed.
Framework 57 established a regulatory process for the Regional Administrator to adjust recreational measures to prevent the recreational catch target from being exceeded for fishing years 2018 and 2019. Framework 63 modifies the process to apply to fishing years 2023 and 2024, to prevent future overages of the GB cod ACL. After consultation with the Council, the Regional Administrator would make any changes to recreational measures consistent with the Administrative Procedure Act.
Framework 63 modifies the default specifications process to increase the default limits to 75 percent of the previous year's catch limit, and extend the effective date through October 31 of that fishing year, or when replaced by new catch limits, whichever happens first. As previously implemented by Framework 53, if the default value is higher than the Council's recommended catch limit for the upcoming fishing year, the default catch limits will be equal to the Council's recommended catch limits for the applicable stocks for the upcoming fishing year.
Under our authority to carry out fishery management plans described in section 305(d) of the Magnuson-Stevens Act, in this action the Regional Administrator reinstates the regulation implementing the possession limit for the northern red hake stock, specified at § 648.86(d)(1)(vi), that was inadvertently deleted from the regulations through a prior rulemaking. The possession limit for the northern red hake stock remains unchanged at 3,000 lb (1,361 kg).
This action also corrects the allocation of the sub-ACL for GB haddock catch by the midwater trawl Atlantic herring fishery, specified at § 648.90(a)(4)(iii)(D)(
During the comment period, we received 20 comments on the Framework 63 proposed rule from Conservation Law Foundation (CLF), the Rhode Island Party and Charter Boat Association (RIPCBA), and 18 members of the public. We also received one comment from the New Bedford Port Authority that was sent before the proposed rule had published, and one comment from Northeast Seafood Coalition (NSC), which was submitted after the comment period had closed.
In its comment, NSC misinterprets the purpose of the DLMtool. The DLMtool is not an assessment model, but rather is a method of calculating catch based on the available assessment information for eastern GB cod. The TRAC developed the DLMtool based on the direction of the TMGC to reduce the TMGC delegations' debate about uncertainty in the cod assessments that made it difficult for the two countries to agree on catch allocations. As part of the DLMtool, the TMGC chose two management objectives, which the TRAC used in 2021 to provide a range of catch advice from 520 mt to 650 mt, with the recommendation that the TMGC select a shared Total Allowable Catch (TAC) that fell in the lower part of this range. The TMGC continues to debate the appropriate level of catch for eastern GB cod and has noted that the DLMtool is a temporary solution to selecting catch allocations until a new assessment for GB cod can be completed. The U.S. and Canada are working to identify future plans to assess the shared cod resource.
Regarding the allocation shares of each shared quota, the member of the public is incorrect that the current agreement entitles the U.S. to 35 percent of the total “cod and haddock” quota on eastern GB. The current allocation shares entitle the U.S. to 28 percent of
In April 2022, the Council initiated Framework 65, which includes the development of a revised rebuilding plan for GOM cod. Additionally, the ongoing work on the Atlantic cod stock structure that is currently being undertaken by the Research Track Working Group, could provide a better basis for catch limits and management for Atlantic cod. However, the ABCs set by this action comply with the Magnuson-Stevens Act and the current rebuilding plan for GOM cod. Last, if we were to disapprove the GOM cod ABCs and ACLs, the 2022 ABC for this stock would remain at 552 mt, as implemented by Framework 59, one metric ton higher than the ABC implemented in this action (551 mt). As noted above, there also would be no additional information to support a different ABC based on an unsupportable estimation of incidental bycatch.
During the development of Framework 59, the SSC decided to use the catch advice coming out of the PlanBsmooth approach to recommend an ABC, rather than an indeterminate OFL, to remain consistent with other stocks that were using an empirical approach for catch advice to prevent overfishing. National Standard guidelines provide for SSC ABC recommendations that differ from the usual ABC control rule calculations, based on factors such as data uncertainty, recruitment variability, declining trends in population variables, and other factors. The SSC has explained this approach and has remained consistent with this decision in Framework 63. While the SSC recommended applying the catch advice for three years of specifications (fishing years 2022-2024), the Council only included an ABC for 2022 in Framework 63. The SSC will need to recommend, and the Council will need to propose, a GB cod ABC for fishing year 2023 and beyond in Framework 65, and we intend to work with the Council and SSC to ensure that the ABC is based on the best scientific information available. Limiting the specification to one year provides an opportunity for consideration of updated information for the following two fishing years and thus could reduce potential uncertainty for those years compared to implementing on data available this year. If the Council does not select an ABC for GB cod for 2023, or if we disapprove it in Framework 65, the ABC for GB cod would drop to zero in 2023.
In Framework 59, it was appropriate to set a constant ABC for all three years of specifications (fishing years 2020-2022) based on the results of the PlanBsmooth approach to account for scientific uncertainty. For Framework 63, the Council's decision to include an ABC for only one year (2022) does not increase the scientific uncertainty of using the results of the PlanBsmooth to set the ABC, compared to setting it for all three years. The extremely low one-year specification in this action is expected to increase the probability of the stock rebuilding, while addressing the poor condition of the GB cod resource for the next year. It also allows the SSC, Council, and NMFS to adopt conservation measures for 2023 in Framework 65, where scientific uncertainty would again be considered.
The SSC had an extensive discussion of how the Council Risk Policy could be used to inform a different recommendation for the GB cod ABC, and the SSC report references economic analysis and information presented by the PDT. While the SSC did recommend that, in the future, the PDT provide additional socioeconomic information, it was clear that the SSC was aware, at least qualitatively, of the potential economic impact of the decreased quota. The SSC did not postpone their recommendation in order to obtain additional information, and a majority of the SSC supported the ABC recommendation that was made to the Council and included as part of Framework 63. Fishing year final catch reports have not historically been provided to the SSC for consideration as part of the process for setting ABCs, although the PDT does provide the inseason catch data that is available at the time of the SSC meeting. Requiring the inclusion of such reports could delay implementation of necessary specifications and adversely impact fisheries and fishing communities. The GB cod assessment that was used by the SSC to recommend ABCs was based on commercial fishery catch data through calendar year 2020 and survey data through spring of 2021, and would not have been updated to reflect the 2020 fishing year catch report that is produced by NMFS in the fall of 2021 for purposes of catch accounting. The Council was aware of NSC's concerns regarding the availability of this information to the SSC, and voted to submit Framework 63 to NMFS with the SSC's recommended ABC for GB cod to support timely implementation of these specifications, including a closed season for the recreational fishery that was intended to begin on May 1, 2022. Waiting for additional information could have resulted in an even greater delay of these specifications and increased adverse impacts from a further delay.
The proposed rule included sector and common pool sub-ACLs based on fishing year 2022 PSCs and preliminary fishing year 2022 sector rosters, but did not include the PSCs and ACEs allocated to each sector. This final rule updates these sub-ACLs to reflect final fishing year 2022 sector rosters and includes the PSCs and ACEs at the sector level.
This final rule includes a correction, under our authority at 305(d), to the regulatory text at § 648.90(a)(4)(iii)(D)(
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866. This final rule does not contain policies with federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
The Assistant Administrator for Fisheries finds that there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness of this action. This action relies on the best available science to set 2022 catch limits for groundfish stocks and adopts several other measures to improve the management of the groundfish fishery. This final rule must be implemented as soon as possible to capture fully the conservation and economic benefits of Framework 63 and avoid adverse economic impacts.
The development of Framework 63 began in June 2021. While the Council took final action on the Framework 63 measures in December 2021, the framework was not formally submitted to NMFS until March 28, 2022. Given the timing of the Council process and submission, the earliest we were able to publish a proposed rule for Framework 63 was on April 20, 2022.
A delay in implementation of this rule increases negative economic effects for regulated entities. The eastern portions of the GB cod and haddock stocks, jointly managed with Canada, did not have 2022 quotas set by a previous framework. A separate action implemented a default quota (35 percent of the 2021 quota) for eastern GB cod and haddock that will be in effect only through July 31, 2022, unless we implement Framework 63 before that date. After July 31, the default quotas expire, at which point vessels would be prohibited from fishing in the Eastern U.S./Canada Area until Framework 63 is effective. The default quotas are constraining the fishery in the Eastern U.S./Canada Area. The majority of fishing in that region occurs during summer primarily due to the seasonal geographic distribution of the stocks. Providing timely access to these stocks is also a potential safety issue. Vessels fish in the summer in the Eastern U.S./Canada Area (approximately 150-200 miles offshore) to avoid extremely dangerous weather in the winter, spring, and fall.
There are also biological impacts associated with a delay in implementation. The GB cod U.S. ABC for fishing year 2022 was previously set by Framework 61 at 1,308 mt, and groundfish sectors were allocated quota on May 1, 2022, based on this catch limit. Based on the 2021 management track assessment, this action reduces the GB cod U.S. ABC for fishing year 2022 to 343 mt. A delay in effectiveness of this action could result in the commercial groundfish fishery overharvesting the GB cod stock, because the higher allocation the commercial fishery received at the beginning of the fishing year could encourage greater fishing during the delay. Similarly, the changes to recreational measures for GB cod being implemented by this final rule (including the reduction in possession limit, the change in slot limit, and the implementation of a closed season) are
The 30-day delay in implementation for this rule is unnecessary because this rule contains no new measures (
Overall, a delay in implementation of this action would greatly diminish the benefits of these specifications and other approved measures. For these reasons, a 30-day delay in the effectiveness of this rule is impracticable and contrary to the public interest.
Section 604 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, requires Federal agencies to prepare a Final Regulatory Flexibility Analysis (FRFA) for each final rule. The FRFA describes the economic impact of this action on small entities. The FRFA includes a summary of significant issues raised by public comments, the analyses contained in Framework 63 and its accompanying Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (IRFA), the IRFA summary in the proposed rule, as well as the summary provided below. A statement of the necessity for and for the objectives of this action are contained in Framework 63 and in the preamble to this final rule, and is not repeated here.
We received several comments expressing concern about the economic impacts of this action and we have summarized the comments in the comments and responses section of this rule. None of these comments were directly related to the IRFA, or provided information that changed the conclusions of the IRFA. The Chief Counsel for the Office of Advocacy of the Small Business Administration (SBA) did not file any comments. We made no changes to the proposed rule measures.
The final rule impacts the recreational groundfish, Atlantic sea scallop, small mesh multispecies, Atlantic herring, and large-mesh non-groundfish fisheries. Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different FMPs, even beyond those impacted by the proposed action. Furthermore, multiple-permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of the RFA analysis, the ownership entities, not the individual vessels, are considered to be the regulated entities.
As of June 1, 2021, NMFS had issued 721 commercial limited-access groundfish permits associated with vessels (including those in confirmation of permit history, CPH), 649 party/charter groundfish permits, 705 limited access and general category Atlantic sea scallop permits, 734 small-mesh multispecies permits, 80 Atlantic herring permits, and 802 large-mesh non-groundfish permits (limited access summer flounder and scup permits). Therefore, this action potentially regulates 3,691 permits. When accounting for overlaps between fisheries, this number falls to 2,126 permitted vessels. Each vessel may be individually owned or part of a larger corporate ownership structure, and for RFA purposes, it is the ownership entity that is ultimately regulated by the proposed action. Ownership entities are identified on June 1st of each year based on the list of all permit numbers, for the most recent complete calendar year, that have applied for any type of Greater Atlantic Federal fishing permit. The current ownership data set is based on calendar year 2020 permits and contains gross sales associated with those permits for calendar years 2018 through 2020.
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The determination as to whether the entity is large or small is based on the average annual revenue for the three years from 2018 through 2020. The Small Business Administration (SBA) has established size standards for all other major industry sectors in the U.S., including for-hire fishing (NAICS code 487210). These entities are classified as small businesses if combined annual receipts are not in excess of $8.0 million for all its affiliated operations. As with commercial fishing businesses, the annual average of the three most recent years (2018-2020) is utilized in determining annual receipts for businesses primarily engaged in for-hire fishing.
Based on the ownership data, 1,696 distinct business entities hold at least one permit that the proposed action potentially regulates. All 1,696 business entities identified could be directly regulated by this proposed action. Of these 1,696 entities, 976 are commercial fishing entities, 281 are for-hire entities, and 439 did not have revenues (were inactive in 2020). Of the 976 commercial fishing entities, 967 are categorized as small entities and 9 are categorized as large entities, per the NMFS guidelines. Furthermore, 579 of these commercial fishing entities held limited access groundfish permits, with 577 of these entities being classified as small businesses and 2 of these entities being classified as large businesses. All 281 for-hire entities are categorized as small businesses.
The action does not contain any new collection-of-information requirements under the Paperwork Reduction Act (PRA).
The economic impacts of each proposed measure are discussed in more detail in sections 6.5 and 7.12 of the Framework 63 Environmental Assessment and are not repeated here. For the updated groundfish specifications and adjustments to the GB cod recreational measures, the No Action alternative was the only other alternative considered by the Council. There are no significant alternatives that would minimize the economic impacts. The proposed action is predicted to generate $73.3 million in gross revenues on the sector portion of the commercial groundfish trips, which is $2.2 million less than No Action, but falls within the recent historical range. Small entities engaged in common pool groundfish fishing may be negatively impacted by the proposed action as well. Likewise, small entities engaged in the recreational groundfish fishery are also likely to be negatively impacted. These negative impacts for both commercial and recreational groundfish entities are driven primarily by a substantial decline in the ACL for GB cod for fishing year 2022. While this decline is expected to result in short-term negative impacts, decreased GB cod catch in fishing year 2022 is expected to yield long-term positive impacts through stock rebuilding.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a bulletin to permit holders that also serves as a small entity compliance guide was prepared. This final rule and the guide (
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons stated in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(k) * * *
(16) * * *
(v)
(d) * * *
(1) * * *
(vi)
(b)
(c) * * *
(1) * * *
(i) * * *
(2) * * *
(g)
(a) * * *
(3) * * * (i) Unless otherwise specified in this paragraph (a)(3), if final specifications are not published in the
(4) * * * (i)
(iii) * * *
(D) * * *
(
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; emergency action.
NMFS issues an emergency rule to temporarily suspend the active participation requirement for captains and crew holding crew quota or C shares under the Bering Sea and Aleutian Islands Crab Rationalization Program (CR Program). This emergency action temporarily suspends the requirement to withhold Individual Fishing Quota (IFQ) and revoke quota share (QS) from individuals who do not meet active participation requirements for the 2022/2023 crab fishing year. This emergency rule is intended to provide flexibility to C share holders in the 2022/2023 crab fishing year. This emergency rule does not modify other provisions of the CR Program. This emergency rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs, and other applicable laws.
Effective July 15, 2022 through January 11, 2023. Comments must be received by August 15, 2022.
You may submit comments on this document, identified by NOAA-NMFS-2022-0067, by any of the following methods:
•
•
Electronic copies of this emergency rule may be obtained from
Alicia M. Miller, 907-586-7228.
The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs
On June 10, 2022, the Council received a request from its Advisory Panel to consider emergency action under section 305(c) of the Magnuson-Stevens Act to provide flexibility to CR Program participants who hold catcher vessel crew (CVC) quota share (QS) or catcher processor crew (CPC) QS in the 2022/2023 crab fishing year. On June 13, 2022, the Council recommended that NMFS implement an emergency rule to suspend the recent participation requirements under the CR Program for CVC QS and CPC QS holders and not withhold individual fishing quota (IFQ) or revoke QS in the 2022/2023 crab fishing year.
The following sections provide an overview of the CR Program and crew shares (C shares), the emergency rule, and justification for emergency action.
The CR Program is a limited access privilege program that allocates the harvest of certain crab fisheries managed under the FMP among harvesters, processors, and coastal communities. Under the CR Program, NMFS issued four types of QS to persons based on their qualifying harvest histories in certain BSAI crab fisheries during a specific period of time defined under the CR Program. The four types of QS are catcher vessel owner (CVO), catcher/processor owner (CPO), catcher vessel crew (CVC), and catcher processor crew (CPC). CVC and CPC QS are also known as “crew shares” or “C shares.” At the beginning of the CR Program, NMFS issued 97 percent of the QS as owner QS, either CVO or CPO, and issued the remaining three percent as C shares, either CVC or CPC.
NMFS issued C shares to individuals holding State of Alaska Commercial Fisheries Entry Commission Interim Use Permits, generally vessel captains, who met specific historical and recent participation requirements in CR Program fisheries. NMFS did not issue C shares to individuals who did not meet both the historical and recent participation criteria. After the initial issuance of C shares individuals could only acquire C shares through transfer.
On May 1, 2015, NMFS issued regulations to implement Amendment 31 to the FMP (80 FR 15891, March 26, 2015) to modify regulations governing the acquisition, use, and retention of C shares, under the CR Program. Regulations implementing Amendment 31 temporarily expanded the eligibility requirements for individuals wishing to acquire C share QS by transfer; established the current regulations for minimum participation requirements for C share QS holders to be eligible to receive an annual allocation of IFQ; established minimum participation requirements for C share QS holders to be eligible to retain their C share QS as well as the administrative process for revocation of an individual's C share QS if he or she fails to satisfy the minimum participation requirements. For more detailed descriptions of the regulations implementing Amendment 31 to the FMP and the rationale for those actions, please see the preamble of the proposed rule (79 FR 77427; December 24, 2014) and the preamble of the final rule (80 FR 15891, March 26, 2015).
Following the implementation of Amendment 31, in order to receive an annual allocation of C share IFQ, the regulations require a C share QS holder to have either (1) participated as crew in at least one delivery in a CR Program fishery in the three crab fishing years preceding the crab fishing year for which the holder is applying for IFQ; or (2) if the individual was an initial recipient of C shares, participated as crew in at least 30 days of fishing in a commercial fishery managed by the of State of Alaska or a U.S. commercial fishery in Federal waters off Alaska in the three crab fishing years preceding the crab fishing year for which the holder is applying for IFQ (§ 680.40(g)(2)). The regulations also require holders of C share QS to meet similar participation requirements over a span of 4 years in order to retain their C share QS (§ 680.40(m)).
If a C share QS holder fails to satisfy the participation requirements three crab fishing years in a row, NMFS will send that individual a notice of withholding and will not issue IFQ for the subsequent crab fishing year (§ 680.40(g)(3)(i)). If a C share QS holder fails to satisfy the participation requirements four crab fishing years in a row and does not divest his or her C share QS, NMFS will revoke the C share QS (§ 680.40(m)(4)). C share holders are permitted to lease their IFQ and join cooperatives; however, all C share QS holders must meet the participation requirements in order to receive C share IFQ and retain C share QS (§ 680.40(m)). Those C share QS holders who lease C share IFQ or join a cooperative are not exempt from the participation requirements.
Each year, a QS holder submits a timely and complete “Application for Annual Crab Individual Fishing Quota (IFQ) Permit” in order to receive an exclusive harvest privilege for a portion of the total allowable catch (TAC) for each CR Program fishery in which the person holds QS (§ 680.40(g)). This harvest privilege is conferred as IFQ, and provides the QS holder with an annual allocation of pounds of crab for harvest in a specific CR Program crab fishery during the year in which it was allocated. The size of each annual IFQ allocation is based on the amount of QS held by a person in relation to the total QS pool in a crab fishery (§ 680.40(h)). For example, an individual holding C share QS equaling one percent of the C share QS pool in a crab fishery would receive IFQ to harvest one percent of the annual TAC allocated to C share QS in that crab fishery. Current regulations allow C share IFQ to be delivered to any registered crab receiver (see § 680.40(b)(2)). Annually, C share IFQ is assigned based on the individual's underlying QS. In a CR Program fishery, the annual allocation of IFQ assigned to any person is based on the TAC for that crab QS fishery less the allocation to the Western Alaska Community Development Quota (CDQ) Program and the Western Aleutian Islands golden king crab fishery. This annual calculation is expressed in regulations at § 680.40(h).
In developing the CR Program and Amendment 31, the Council and NMFS intended that individuals holding C share QS are active in CR Program fisheries. In addition to the participation requirements applicable to the issuance of C share IFQ and retention of C share QS, the CR Program also includes participation criteria that must be satisfied for an individual to be eligible to receive C share QS by transfer.
To receive C share QS by transfer, current regulations require an applicant to meet eligibility requirements at the time of transfer (§ 680.41(c)). To meet these eligibility requirements, an individual may submit an Application for CR Program Eligibility to Receive QS/PQS or IFQ/IPQ by Transfer in advance of, or concurrently with, their Application for Transfer of Crab Quota Share (QS) or Application for Transfer of Crab Processor Quota Share (PQS). The regulations require that an individual must be a U.S. citizen with (1) at least 150 days of sea time as part of a harvesting crew in any U.S. commercial fishery; and (2) participation as crew in one of the CR
When NMFS implemented the CR Program in 2005, NMFS made initial allocations of C share QS to Commercial Fisheries Entry Commission permit holders that were individuals (
Upon implementation of Amendment 31 to the FMP, one hundred and seventy-nine individuals held C shares. Of those individuals, 70 were estimated to have been part of the 239 individuals who received an initial allocation of C shares based on their historical participation. Currently, 155 individuals hold C shares.
This emergency rule temporarily suspends the active participation requirements for persons holding C shares QS by removing NMFS's obligation to consider an individual's recent participation in reviewing 2022 applications for C share IFQ and to make decisions about whether to withhold IFQ or revoke QS in the 2022/2023 crab fishing year. This emergency rule does not suspend the participation requirements applicable for an individual to be eligible to receive C share QS by transfer. This emergency rule is intended to provide temporary relief from the participation requirements for C share QS holders for the 2022/2023 crab fishing year. This emergency rule temporarily adds regulations at § 680.40(g)(4) and (m)(6) and § 680.43(d) instructing the NMFS Regional Administrator to not consider participation requirements for the 2022/2023 crab fishing year upon review of an Application for Annual Crab Individual Fishing Quota (IFQ) Permit submitted in 2022. This emergency rule does not modify any other aspect of the CR Program and would not affect subsequent crab fishing years.
In subsequent crab fishing years, in order to receive an annual allocation of C share IFQ, holders of C shares (CVC or CPC QS) must meet the recent participation requirements specified at § 680.40(g)(2) and described above. Additionally, in subsequent crab fishing years holders of C share QS will be required to meet participation requirements over a span of the four preceding years in order to retain their C share QS, as specified at § 680.40(m). The temporary relief from participation requirements in the 2022/2023 crab fishing year will provide some C share QS holders with the opportunity to participate in the fishery in 2022/2023, when they would otherwise have had their IFQ withheld or QS revoked in 2022, and thus providing those individuals with the opportunity to meet requirements to retain their QS for the subsequent four crab fishing years and receive annual IFQ for the subsequent three crab fishing years.
After the 2022/2023 crab fishing year, if a C share QS holder has failed to satisfy the recent participation requirements and does not divest his or her C share QS, NMFS will revoke the C share QS pursuant to §§ 680.40(m) & 680.43. If a C share QS holder satisfies the participation requirements to receive C share IFQ pursuant to § 680.40(g)(2), the holder also will satisfy the participation requirements for retention of C share QS.
This emergency action does not impose additional restrictions on CR Program participants, but would temporarily provide relief to C share QS holders from the participation requirement for the 2022/2023 crab fishing year. This emergency rule does not increase the amount of TAC available for harvest, increase the risk of overfishing, or otherwise modify conservation measures. This emergency rule is needed to provide relief to C share QS holders from the participation requirements for the years preceding the 2022/2023 crab fishing year due to the impacts of the COVID-19 pandemic and significant reduction in the overall crab TAC in the 2021/2022 crab fishing year. This emergency rule does not modify existing requirements on the types of vessels and gear that could be used, monitoring requirements, record keeping regulations, or other aspects of the CR Program.
Section 305(c) of the Magnuson-Stevens Act authorizes the Secretary of Commerce (Secretary) to promulgate regulations to address an emergency (16 U.S.C. 1855(c)). Under that section, a Council may request that the Secretary promulgate emergency regulations. NMFS's Policy Guidelines for the Use of Emergency Rules require that an emergency must exist and that NMFS have an administrative record justifying emergency regulatory action and demonstrating compliance with the Magnuson-Stevens Act and the National Standards (see NMFS Procedure 01-101-07; 62 FR 44421, August 21, 1997). Emergency rulemaking is intended for circumstances that are “extremely urgent,” where “substantial harm to or disruption of the . . . fishery . . . would be caused in the time it would take to follow standard rulemaking procedures (62 FR 44421, August 21, 1997).”
Under NMFS's Policy Guidelines for the Use of Emergency Rules, the phrase “an emergency exists involving any fishery” is defined as a situation that meets the following three criteria:
1. Results from recent, unforeseen events or recently discovered circumstances;
2. Presents serious conservation or management problems in the fishery; and
3. Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process.
The following sections describe why the Council and NMFS determined that this action meets these criteria.
The combined impact of two unforeseen events—the COVID-19 pandemic and the sudden and recent reduction of the overall crab TACs in the 2021/2022 crab fishing year—led to the recently discovered circumstance that a number of CVC and CPC QS holders may be subject to withholding of IFQ or revocation of QS because there was insufficient opportunity to participate in the CR fisheries in recent years. Beginning in March 2020 (the last quarter of the 2019/2020 crab fishing year), fishing activity has been impacted by the unexpected COVID-19 pandemic. Vessel operations continued to be impacted by ongoing outbreaks of the COVID-19 pandemic throughout the
In October 2021, NMFS determined the Bering Sea snow crab stock to be overfished. The sudden decline of the snow crab biomass resulted in an 88 percent reduction in overall BSAI crab TAC in the 2021/2022 crab fishing year. This large reduction in overall crab TAC reduced available crew jobs because fewer vessels operated in the fishery and made fewer CR Program landings in the 2021/2022 crab fishing year. In the 2021/2022 crab fishing year, there were 380 vessel landings in the CR Program fisheries. This is less than half the annual average number of landings made by vessels in the preceding 5 year period at approximately 837 per year.
The combination of the COVID-19 pandemic and sudden decline in CR Program TACs limited the ability of CVC and CPC QS holders to meet participation requirements necessary to receive an annual allocation of IFQ and retain C share QS. In particular, the health risks of the pandemic may have limited crew jobs in the 2019/2020, 2020/2021, and 2021/2022 crab fishing years, a situation compounded by the large reduction of overall BSAI crab TAC in the 2021/2022 crab fishing year. The impacts of these events have resulted in the recently discovered circumstances that it will be difficult for CVC and CPC QS holders to demonstrate compliance with recent participation requirements when applying for IFQ for the 2022/2023 crab fishing year and for retaining C shares QS.
The C shares were included in the BSAI CR Program to protect the interests of qualifying crew by allocating 3 percent of the initial QS pool to C shares. In creating the CR Program, the Council and NMFS intended the economic benefits of C shares and resulting IFQ to flow to at-sea participants in the fisheries by including an active participation requirement for C share QS holders.
The active participation requirement was expected to influence the market for C shares to be more active and fluid, since individuals who retire or exit the fisheries would have an incentive to transfer their C shares before NMFS would revoke C share QS and remove it from the C share QS pool.
Due to the impacts of the COVID-19 pandemic and significant reduction in the overall crab TAC in the 2021/2022 crab fishing year, CVC and CPC QS holders may not meet participation requirements necessary to receive an annual allocation of IFQ and retain C share QS for the 2022/2023 crab fishing year. Additionally, low market value for C shares due to the recent declines in CR Program TACs may limit market opportunities to divest C shares on the QS market.
As part of Amendment 31 to the FMP, the Council and NMFS implemented specific C share provisions to address concerns of crews displaced by fleet consolidation to provide opportunity for those interested in acquiring C shares to maintain an interest in the fisheries. The potential withholding of C share IFQ and revocation of C share QS due to COVID-19 pandemic impacts and significant crab TAC reduction presents a serious management problem for the BSAI CR Program.
NMFS and the Council have determined that the emergency situation created by the combined impact of the COVID-19 pandemic and the sudden and recent reduction of overall crab TACs on C share QS holders' ability to meet active participation requirements can be addressed by emergency regulations. The Council requested emergency action at its regularly scheduled June 2022 meeting. The application deadline for the 2022/2023 crab fishing year is June 15, 2022, after which NMFS will review applications for annual IFQ including documentation submitted to demonstrate compliance with recent participation requirements. NMFS will make initial decisions about withholding annual IFQ or revoking C share QS prior to the issuance of IFQ for the opening of the crab fishing season, which is anticipated to occur on or after July 15, 2022. The Council and NMFS believe the value of emergency action to suspend withholding of C share IFQ and revocation of C share QS outweighs the value of notice and comment rulemaking for the 2022/2023 crab fishing year.
To address the emergency in a timely manner, NMFS must implement an emergency rule that waives the notice-and-comment rulemaking period. The benefits of waiving notice-and-comment rulemaking will serve the affected C share QS holders by temporarily suspending the requirement for NMFS to withhold IFQ and revoke QS from individuals that do not meet active participation requirements for the 2022/2023 crab fishing year. Any delay of implementing this emergency rule could result in adverse economic harm to individuals who may have their annual IFQ withheld or C share QS revoked for the 2022/2023 crab fishing year.
The Council could not recommend and NMFS cannot implement regulations through the conventional notice-and-comment rulemaking process before NMFS must make initial decisions about withholding annual IFQ or revoking C share QS prior to the issuance of IFQ for the opening of the crab fishing season, which is anticipated to occur on or after July 15, 2022.
Typically, the process of Council analysis and NMFS rulemaking takes at least one year to implement. For this action, NMFS received the request for emergency action on June 13, 2022. In the same motion requesting emergency action to provide immediate relief to C share QS holders, the Council initiated an analysis to consider permanently modifying the CVC QS and CPC QS recent participation requirements in order to address the ongoing impacts of the COVID-19 pandemic and the decline of the CR Program TACs. If the Council recommends further action to implement a longer-term solution to revise regulations that would occur through conventional notice-and-comment rulemaking.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) of the APA to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. The benefits of waiving notice-and-comment rulemaking will temporarily provide relief to C share QS holders from participation requirements for the 2022/2023 crab fishing year and prevent NMFS from withholding any annual C share IFQ or revoking C share QS. Any delay to implementation of this rulemaking could result in adverse economic harm to individuals who may have their annual IFQ withheld or C share QS revoked in the 2022/2023 crab
Similarly, for the reasons above that support the need to implement this emergency rule in a timely manner, the Assistant Administrator for Fisheries finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness provision of the APA and make the emergency rule effective immediately upon publication in the
This emergency rule has been determined to be not significant for the purposes of Executive Order 12866.
This emergency rule is exempt from the procedures of the Regulatory Flexibility Act (5 U.S.C. 601
This emergency rule does not contain a change to a collection of information requirement for purposes of the Paperwork Reduction Act of 1995. The existing collection of information requirements would continue to apply under OMB Control Number 0648-0514, Alaska Region Crab Permits. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at:
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 680 is amended as follows:
16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.
(g) * * *
(4)
(m) * * *
(6) Under emergency measures effective July 15, 2022, and notwithstanding any other section of this part, the Regional Administrator will not consider participation requirements set forth in paragraph (m)(2) of this section in reviewing a CVC or CPC QS holder's Application for Annual Crab Individual Fishing Quota (IFQ) Permit for the 2022/2023 crab fishing year or in making any other determinations about whether to revoke CVC or CPC QS in the 2022/2023 crab fishing year.
(d)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend three low altitude Area Navigation (RNAV) routes (T-routes) and establish two T-routes in support of the VHF Omnidirectional Range (VOR) Minimum Operational Network (MON) Program. The purpose is to enhance the efficiency of the National Airspace System (NAS) by transitioning from ground-based navigation aids to a satellite-based navigation system.
Comments must be received on or before August 15, 2022.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: (800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2022-0826; Airspace Docket No. 21-AEA-21 at the beginning of your comments. You may also submit comments through the internet at
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Paul Gallant, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV and enhance the efficiency of the NAS by transitioning from ground-based navigation aids to a satellite-based navigation system
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2022-0826; Airspace Docket No. 21-AEA-21) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0826; Airspace Docket No. 21-AEA-21.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
The FAA is proposing an amendment to 14 CFR part 71 to amend three low altitude RNAV T-routes, designated T-287, T-358, and T-608; and to establish two T-routes designated T-318, and T-
In addition, the following points would be removed from the T-608 legal description because they do not denote a turn point on the route: MONCK, NY, WP; LORTH, NY, Fix; MAGEN, NY, WP; KONDO, NY, WP; WIFFY, NY, WP; STODA, NY, WP; VASTS, NY, Fix; NORSE, NY, WP; MARIA, NY, WP; WARUV, NY, WP; GRISY, MA, WP; WARIC, MA, WP; HURLY, MA, Fix; GRAYM, MA, WP; BLATT, CT, WP; MOGUL, CT, WP; and YANCT, CT, WP;.
Full route descriptions of the above T routes are listed in the amendments to part 71 set forth below.
United States RNAV T-routes are published in paragraph 6011, and Canadian RNAV T-routes are published in paragraph 6023, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in this document would be subsequently published in FAA Order 7400.11.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA, Agency, or we) is proposing to revoke the Methods of analysis regulation describing an FDA policy to use certain methods of analysis for FDA enforcement programs when the method of analysis is not prescribed in a regulation. FDA is proposing this action because the existing regulation is unnecessary.
Either electronic or written comments on the proposed rule must be submitted by September 28, 2022.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Holli Kubicki, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Drive, Rockville, MD 20852, 240-402-4557.
This proposed rule would revoke the Methods of analysis regulation, § 2.19 (21 CFR 2.19), describing an FDA policy to use certain methods of analysis for FDA enforcement programs when the method of analysis is not prescribed in a regulation. The regulation is unnecessary.
The proposed rule revokes § 2.19, which states that it is FDA policy to use the methods of analysis of the Association of Analytical Chemists (AOAC) International as published in the 1980 edition of “Official Methods of Analysis of the Association of Analytical Chemists” for FDA enforcement programs when the method of analysis is not prescribed in a regulation.
FDA is taking this action under the general administrative provisions of the Federal Food, Drug, and Cosmetic Act (FD&C Act).
Because this proposed rule would not impose any additional regulatory burdens, this regulation is not anticipated to result in any compliance costs and the economic impact is expected to be minimal.
FDA's regulation concerning its policy on methods of analysis in enforcement programs dates back nearly 50 years (37 FR 16174, Aug. 11, 1972). Early versions of the regulation stated that unless a regulation prescribed a specific method of analysis, it would be FDA's policy to use the methods of analysis in the “latest edition of [the AOAC's] publication . . . and supplements thereto. . . .” (see,
FDA has revised the methods of analysis regulation several times, including in 1982 to meet the drafting requirements for incorporation by reference set forth in 1 CFR part 51, and after to make several technical amendments to update names and addresses. However, since the 1982 revision, the regulation has referred to the methods of analysis in the 13th Edition, 1980 of AOAC's publication. FDA is now proposing to revoke the methods of analysis regulation as specified in this proposed rule.
The Agency believes that the regulation is unnecessary as a general matter. Absent specifying a method of analysis in a regulation, FDA believes it is more appropriate, flexible, and efficient to identify the Agency's preferred methods of analysis in documents such as the Office of Regulatory Affairs Laboratory Procedures Manual, FDA compliance programs, and other resources.
FDA is issuing this proposed rule under the following provisions of the FD&C Act: 21 U.S.C. 321, 331, 335, 342, 343, 346a, 348, 351, 352, 355, 360b, 361, 362, 371, 372, 374.
The proposed rule revokes § 2.19, which states that it is FDA policy to use the methods of analysis of the AOAC International as published in the 1980 edition of “Official Methods of Analysis of the Association of Analytical Chemists” for FDA enforcement programs when the method of analysis is not prescribed in a regulation. Repeal of this regulation would eliminate an unnecessary policy.
FDA is proposing this action because a general reference to the 1980 edition of the “Official Methods of Analysis of the Association of Analytical Chemists” is unnecessary and because newer, updated methods of analysis may exist. Unless a method of analysis is specified in regulations, FDA believes it is more appropriate, flexible, and efficient to identify the Agency's preferred methods of analysis in documents such as the Office of Regulatory Affairs Laboratory Procedures Manual and other resources.
FDA is proposing to remove § 2.19 from the regulations.
FDA is proposing that any final rule based on this proposed rule become effective 30 days after the date of its publication in the
We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). This proposed rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this proposed rule does not add any new regulatory burden on the industry, we propose to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any
We believe industry will largely maintain their current practices following the removal of § 2.19 Methods of analysis regulation. FDA will also maintain its current practices, similarly generating no quantifiable cost savings. Therefore, we expect this proposed rule to be cost neutral. Table 1 summarizes the estimated benefits and costs of the proposed rule, if finalized.
We have developed a comprehensive Preliminary Economic Analysis of Impacts that assesses the impacts of the proposed rule. The full preliminary analysis of economic impacts is available in the docket for this proposed rule and at
We have determined under 21 CFR 25.31(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA tentatively concludes that this proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. We have determined that this proposed rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we conclude that this proposed rule does not contain policies that have federalism implications as defined in the Executive Order and, consequently, a federalism summary impact statement is not required.
We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13175. We have tentatively determined that this proposed rule does not contain policies that would have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The Agency solicits comments from tribal officials on any potential impact on Indian Tribes from this proposed action.
The following reference is on display at the Dockets Management Staff (see
Administrative practice and procedure, Cosmetics, Drugs, Foods.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, FDA proposes that 21 CFR part 2 be amended as follows:
15 U.S.C. 402, 409; 21 U.S.C. 321, 331, 335, 342, 343, 346a, 348, 351, 352, 355, 360b, 361, 362, 371, 372, 374; 42 U.S.C. 7671
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); request for comments.
Extreme weather due to climate change threatens the safety and mobility of Americans and challenges the stability of supply chains. To help address the climate crisis, FHWA proposes to amend its regulations governing national performance management measures to require State departments of transportation (State DOTs) and metropolitan planning organizations (MPOs) to establish declining carbon dioxide (CO
Comments must be received on or before October 13, 2022.
To ensure that you do not duplicate your docket submissions, please submit comments by only one of the following means:
•
•
•
Mr. John Davies, Office of Planning, Environment, and Realty, (202) 366-6039, or via email at
This document and all comments received may be viewed online through the Federal eRulemaking portal at
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period and after DOT has had the opportunity to review the comments submitted.
1. Costs and Benefits
2. Duplication of Efforts
FHWA proposes to amend its regulations on national performance management measures to establish a method for the measurement and reporting of GHG emissions associated with transportation under Title 23, U.S.C. The environmental sustainability, and specifically the carbon footprint, of the transportation system is a critically important attribute that State DOTs can and should use to assess the performance of the Interstate and non-Interstate National Highway System (NHS). 23 U.S.C. 150(c) directs FHWA to establish performance measures that the State DOTs can use to assess performance of the Interstate and non-Interstate NHS. Although the statute does not define the meaning of “performance” of the Interstate and non-Interstate NHS under 23 U.S.C. 150(c), Congress identified national goals under 23 U.S.C. 150(b), which include environmental sustainability. To support the environmental sustainability national goal, FHWA is proposing that “performance” of the Interstate and non-Interstate NHS under 23 U.S.C. 150(c) includes environmental performance. This definition of “performance” is also consistent with other Title 23, U.S.C. provisions, such as 23 U.S.C. 119, as discussed later in this preamble.
The proposed GHG measure would be codified among the National Highway Performance Program (NHPP) performance measures that FHWA established in 23 CFR part 490 (part 490) through prior rulemakings. The proposed rule would require State DOTs and MPOs that have NHS mileage within their State geographic boundaries and metropolitan planning area boundaries, respectively, to establish declining targets that reduce CO
The proposed GHG measure would help the United States confront the increasingly urgent climate crisis. The Sixth Assessment Report by the Intergovernmental Panel on Climate Change (IPCC), released on August 7, 2021, confirms that human activities are increasing GHG concentrations that have warmed the atmosphere, ocean, and land at a rate that is unprecedented in at least the last 2,000 years.
The proposed GHG measure would align with recent Executive Orders described later in this preamble and a U.S. target of achieving a 50 to 52 percent reduction from 2005 levels of economy-wide net GHG pollution in
Accordingly, as a matter of transportation policy, DOT considers the proposed GHG performance management measure essential not only to improve transportation sector GHG performance and work toward achieving net-zero emissions economy-wide by 2050, but also to demonstrate Federal leadership in the assessment and disclosure of climate pollution from the transportation sector. Measuring and reporting complete, consistent, and timely information on GHG emissions from on-road mobile source emissions is necessary so that all levels of government and the public can monitor changes in GHG emissions over time and make more informed choices about the role of transportation investments and other strategies in achieving GHG reduction targets. In addition, a requirement for State DOTs and MPOs to establish declining targets for reductions in tailpipe CO
Furthermore, the proposed rule responds to the direction in sections 1 and 2 of Executive Order 13990 that Federal agencies review any regulations issued or similar actions taken between January 20, 2017, and January 20, 2021, and, consistent with applicable law, take steps to address any such actions that conflict with the national objectives set forth in the order to address climate change. FHWA reviewed its 2018 final rule (83 FR 24920, May 31, 2018) that repealed a GHG measure FHWA adopted in 2017 (2017 GHG measure) and determined that the repeal conflicts with those objectives.
FHWA has the legal authority to establish the proposed GHG measure under 23 U.S.C. 150. Specifically, FHWA is directed under 23 U.S.C. 150(c)(A)(ii) to establish measures for States to use to assess the performance of the Interstate System and non-Interstate NHS. Although the statute does not define performance, 23 U.S.C. 150(b)(6) identifies environmental sustainability as a national goal of the Federal-aid highway program. To address this national goal, FHWA has determined that the performance of the Interstate System and the NHS under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) includes environmental performance. The proposed GHG measure is also appropriate in light of other provisions of Title 23, U.S.C., notably the National highway performance program provisions at 23 U.S.C. 119, which include requirements for State asset management plans that support progress toward the achievement of the environmental sustainability national goal to enhance the performance of the transportation system while protecting and enhancing the natural environment at 23 U.S.C. 150(b)(6). In addition, several other provisions support the measure, including: 23 U.S.C. 101(b)(3)(G) (transportation policy); 134(a)(1) (transportation planning policy); 134(c)(1) (metropolitan planning); and 135(d)(1) and (d)(2) (statewide planning process and a performance-based approach).
The proposed GHG measure does not conflict with the on-road mobile source emissions provision in 23 U.S.C. 150(c)(5), which requires that the Secretary establish performance measures to carry out the Congestion Mitigation and Air Quality Improvement (CMAQ) Program to reduce criteria pollutants under 23 U.S.C. 149. As discussed below, performance measures may overlap to achieve the national goals set forth in the statute.
In addition, there are two other lines of support for the proposed GHG measure. First, the proposed measure would inform transportation planning at all levels of government, including by State DOTs, MPOs, and FHWA. By providing consistent and timely information about on-road mobile source emissions on the NHS, the proposed GHG measure has the potential to yield benefits including greater public awareness of GHG emissions trends, increased transparency and improved decision-making at all levels of government, and planning choices to reduce GHG emissions or inform tradeoffs among competing policy choices.
Second and related, the establishment of a national GHG measure would provide a new source of information that would be valuable to State DOTs, MPOs, and the Federal government as they pursue GHG reduction goals and targets. The potential for duplication of efforts by other government entities was one reason FHWA cited in 2018 when repealing the 2017 GHG measure. Upon further consideration, FHWA rejects the notion that the proposed GHG measure would duplicate other efforts and therefore is inappropriate. While the U.S. Department of Energy (DOE) and the U.S. Environmental Protection Agency (EPA) publish State-by-State CO
FHWA proposes changes to two subparts of part 490: Subpart A—General Information, and Subpart E—National Performance Management Measures to Assess Performance of the National Highway System. The proposed changes to subpart A include a new definition in § 490.101 and the addition of references to the proposed GHG measure and new provisions in the following sections: § 490.105 Establishment of performance targets; § 490.107 Reporting on performance targets; and § 490.109 Assessing significant progress toward achieving the performance targets for the National Highway Performance Program and the National Highway Freight Program. The
The draft regulatory impact analysis (RIA) prepared pursuant to Executive Order 12866, and which is available in the rulemaking docket (Docket No. FHWA-2021-0004), estimates the costs associated with establishing the GHG measure, derived from the costs of implementing the GHG measure for each component of the rule that may involve costs. To estimate the costs, FHWA assessed the level of effort that would be needed to comply with each applicable section in part 490 with respect to the GHG measure, including labor hours by labor category, over a 10-year study period (2022-2031). Total costs over this period are estimated to be $11.0 million, discounted at 7 percent, and $12.9 million, discounted at 3 percent. The RIA discusses anticipated benefits of the rule qualitatively; they are not quantified because they are difficult to forecast and monetize.
The 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. L. 112-141) and the 2015 Fixing America's Surface Transportation (FAST Act, Pub. L. 114-94) transformed the Federal-aid highway program by establishing performance management requirements and tasking FHWA with carrying them out. To implement this program, FHWA established an organizational unit with dedicated full time staff to coordinate with program staff from each of the performance areas to design and establish an approach to effectively implement the Title 23 performance provisions. FHWA has technical and policy experts on staff to provide State DOTs and MPOs assistance implementing performance management, and to oversee program requirements.
FHWA conducted several rulemakings to implement the new performance management framework. The rulemakings established in part 490 the performance measures and requirements for target establishment, reporting on progress, and how determinations would be made on whether State DOTs have made significant progress toward applicable targets.
The transportation performance management requirements provide increased accountability and transparency, and facilitate efficient investment of Federal transportation funds through a focus on performance outcomes for the seven national transportation goals concerning safety, infrastructure condition, congestion reduction, system reliability, freight movement and economic vitality, environmental sustainability, and reduced project delivery delays.
Prior to MAP-21, there were no explicit statutory requirements for State DOTs or MPOs to demonstrate how their transportation programs supported national performance outcomes, making it difficult to assess the effectiveness of the Federal-aid highway program. The new Transportation Performance Management (TPM) requirements established in MAP-21 changed this paradigm by requiring State DOTs and MPOs to measure condition or performance, establish targets, assess progress towards targets, and report on condition or performance in a nationally consistent manner for the first time (23 U.S.C. 150(e) and 23 CFR 490.107).
As previously noted, FHWA conducted several rulemakings implementing the performance management framework. Most relevant to this proposed rule are three related national performance management measure rulemakings in which FHWA established various measures for State DOTs and MPOs to use to assess performance, found at 23 CFR part 490. The first rulemaking focused on Safety Performance Management (PM1), and a final rule published on March 15, 2016 (81 FR 13882), established performance measures for State DOTs to use to carry out the Highway Safety Improvement Program (HSIP). The second rulemaking on Infrastructure Performance Management (PM2) resulted in a final rule published on January 18, 2017 (82 FR 5886), that established performance measures for assessing pavement condition and bridge condition for the NHPP. The third rulemaking, System Performance Management (PM3), established measures for State DOTs and MPOs to use to assess the performance of the Interstate and non-Interstate NHS for the purpose of carrying out the NHPP; to assess freight movement on the Interstate System; and to assess traffic congestion and on-road mobile source emissions for the purpose of carrying out the CMAQ Program. The PM3 final rule was published on January 18, 2017 (82 FR 5970).
The PM3 rule addressed a broad set of performance issues and some of the national transportation goals, such as environmental sustainability, that were not addressed in the earlier rulemakings focused solely on safety and infrastructure condition. In the preamble to the PM3 proposed rule, published on April 22, 2016 (81 FR 23806), FHWA requested public comment on whether to establish a CO
In the PM3 final rule, FHWA established a GHG emissions performance measure to measure environmental performance in accordance with 23 U.S.C. 150(c)(3) after considering extensive public comments on whether and how FHWA should establish such a measure. Specifically, the GHG measure involved the percent change in CO
On October 5, 2017 (82 FR 46427), however, FHWA proposed to repeal the 2017 GHG measure. FHWA requested public comment on whether to retain or revise the 2017 GHG measure.
All other performance management measures remained in place and implementation is underway. FHWA continues to expect that State DOTs and MPOs will use the information and data generated in response to part 490 to inform State or local planning and programming decisions. FHWA, in turn, will continue to use the information and data to improve national performance on all of the statutory goals and to assess more reliably the impacts of Federal funding investments.
FHWA believes that establishment of performance management requirements remains a powerful tool for achieving all seven of the statutory national transportation goals, including environmental sustainability. As FHWA acknowledged in the preamble to the PM3 final rule, implementation of the performance management requirements should evolve over time for various reasons, including shifts in national priorities for the focus on a goal area.
Scientific literature published since the 2018 GHG measure repeal provides greater certainty on the impact of human activities on the earth's current and future climate, as well as the urgency of actions to reduce human GHG emissions. The IPCC Sixth Assessment Report states that it is now unequivocal that human activities have increased atmospheric GHG emissions concentrations and resulted in warming of the atmosphere, ocean, and land, with average surface temperature having increased by approximately 2 degrees Fahrenheit since the 1800s.
Other research also shows that CO
Scientists have warned that significant and potentially dangerous shifts in climate and weather are possible with climate change of 2 degrees Celsius (3.6 degrees Fahrenheit) beyond preindustrial levels.
Given the urgency of the climate crisis, several recent Executive orders and other commitments prioritize actions throughout the Government to address climate change. Section 1 of E.O. 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” 86 FR 7037 (Jan. 25, 2021), articulates national policy objectives, including listening to the science, improving public health and protecting the environment, reducing GHG emissions, and strengthening resilience to the impacts of climate change. E.O. 14008, “Tackling the Climate Crisis at Home and Abroad,” 86 FR 7619 (Feb. 1, 2021), recommits the United States to the Paris Agreement and calls on the United States to begin the process of developing its nationally determined contribution to global GHG reductions with analysis and input from executive departments and agencies and outreach to domestic stakeholders. 86 FR 7620. Under that nationally determined contribution, the U.S. will target reducing emissions by 50 to 52 percent by 2030 compared to 2005 levels.
E.O. 14008 also calls for a Government-wide approach to the climate crisis and acknowledges opportunities to create jobs to build a modern, sustainable infrastructure, to provide an equitable, clean energy future, and to put the United States on a path to achieve net-zero emissions, economywide, no later than 2050. 86 FR 7622. Notably, section 201 of E.O. 14008 calls on the Federal Government to drive assessment, disclosure, and mitigation of climate pollution and envisions Federal actions combined with efforts from every level of government and every economic sector. 86 FR 7622. It also supports the principle set forth in section 213 “to ensure that Federal infrastructure investment reduces climate pollution.” 86 FR 7626. This principle affirms that reducing GHGs is part of the expected performance of transportation infrastructure, making it an appropriate and necessary metric for the NHS.
In addition, sections 1 and 2 of E.O. 13990 direct that all agencies immediately review Federal regulations promulgated and other actions taken between January 20, 2017, and January 20, 2021, and, consistent with applicable law, take action to address regulations that conflict with the national objectives stated in section 1 of E.O. 13990 and to begin work immediately to address the climate crisis. 86 FR 7037. In response to this direction, FHWA has reviewed the May 2018 final rule that repealed the 2017 GHG measure and has concluded that the repeal conflicts with those national objectives, which include reducing GHG emissions. Because reducing GHG emissions is clearly established as a national priority and national goal in section 1 of E.O. 13990 and E.O. 14008, FHWA has concluded that it is appropriate to propose to reestablish a GHG performance measure for the reasons set forth in this preamble. The proposed measure is similar to the repealed 2017 GHG measure. However, FHWA is updating analyses and proposing updated requirements associated with the measure. Additionally, FHWA is proposing to require State DOTs and MPOs to set declining targets for reducing tailpipe CO
By establishing the proposed GHG measure, FHWA would be taking action to address the largest source of U.S. CO
In addition to being the largest source of U.S. CO
Transportation infrastructure is increasingly at risk from increased intensity and frequency of precipitation, sea level rise and resulting coastal flooding, heat, wildfires, and other extreme events associated with a changing climate. These impacts threaten to increase the cost of maintaining, repairing, and replacing infrastructure, particularly assets that are approaching or beyond their design life. Climate impacts also threaten the performance of the entire network, as defined by national goals identified in 23 U.S.C. 150(b). Basic mobility and economic needs will be compromised by both short-term and long-term impacts of climate change. Potential consequences include effects on safety, environmental sustainability, economic vitality and mobility, congestion, and system reliability. Given the increased severity of extreme weather events resulting from climate change, ensuring safe and effective emergency evacuation routes will become increasingly difficult. These effects may disproportionately affect vulnerable populations and urban transportation assets.
In the face of these climate challenges, establishing a GHG measure in FHWA's Transportation Performance Management Program would provide a consistent basis for addressing the environmental sustainability of the system and estimating on-road GHG emissions. The measure would aid State DOTs and MPOs in planning GHG emissions reductions and evaluating progress toward national, State, and local GHG targets. Comprehensive transportation planning processes require consideration of strategies that protect and enhance the environment, promote energy conservation, improve the quality of life, and improve the resiliency and reliability of the transportation system.
Establishing a GHG measure also would result in a consistent set of data that could inform the future investment decisions of the Federal Government, State DOTs, and MPOs towards achieving their targets or goals. In addition, an on-road GHG emissions measure would advance the Federal-aid highway program's national goal for environmental sustainability identified under 23 U.S.C. 150(b)(6). In implementing the proposed measure, FHWA intends to consider a wide range of data and tools from EPA, the DOE National Laboratories, and other Federal agencies.
An on-road GHG emissions measure would allow State DOTs, MPOs, and FHWA to analyze transportation GHG trends and could facilitate DOT contributions to the National Climate Task Force established in section 203 of E.O. 14008 to facilitate the organization and deployment of a Government-wide approach to the climate crisis.
FHWA is proposing to establish a GHG emissions performance measure under 23 U.S.C. 150(c)(3), which calls for performance measures that the States can use to assess performance of the Interstate and non-Interstate NHS for the purpose of carrying out the NHPP under 23 U.S.C. 119. 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V). Since Congress did not define the term “performance,” as used in 23 U.S.C. 150(c)(3), FHWA must interpret this term in the context of the statute. Accordingly, FHWA is interpreting “performance” of the Interstate and non-Interstate NHS under 23 U.S.C. 150(c) to include the system's environmental performance, an interpretation that is consistent with the national goals established under 23 U.S.C. 150(b). Assessing environmental performance will further the environmental sustainability national goal to enhance the performance of the transportation system while protecting and enhancing the natural environment. 23 U.S.C. 150(b)(6). This national goal is incorporated into the NHPP under 23 U.S.C. 119(e), which calls for a performance-driven asset management plan that would “support progress toward the achievement of the national goals identified in section 150(b).” Assessing environmental performance also provides support for activities to increase the resiliency of the NHS to mitigate the cost of damages from sea level rise, extreme weather events, flooding, wildfires, or other natural disasters, which is one of the purposes of the NHPP. 23 U.S.C. 119(b)(4). This measure would only apply to the Interstate and non-Interstate NHS. Since 23 U.S.C. 150(c)(3)(IV)-(V) refers only to the performance of the Interstate system and the non-Interstate NHS, FHWA only has authority to apply this measure to the Interstate system and the non-Interstate NHS. This interpretation is also consistent with 23 U.S.C. 150(c)(2), as further described in this preamble.
In the May 2018 final rule repealing the GHG performance requirements in the PM3 rule, FHWA reconsidered its interpretation of the statute and determined that the statute did not
First, Congress specifically directed FHWA to establish measures for States to use to assess the performance of the Interstate System and the non-Interstate NHS.
FHWA has reexamined this determination from the 2018 repeal final rule and is proposing to reassert FHWA's earlier determination in the PM3 final rule that FHWA has authority under 23 U.S.C. 150(c)(3) to establish a GHG performance measure. Congress has not directly addressed the meaning of “performance” under the NHPP. Rather, FHWA is proposing that Congress has directed FHWA to determine the nature and scope of the specific performance measures that will fulfill the statutory mandate in 23 U.S.C. 150(c). Accordingly, FHWA is proposing that the performance of the Interstate System and the NHS includes environmental performance. This interpretation is reasonable in light of FHWA's statutory mandate to address the national goal of environmental sustainability under 23 U.S.C. 150(b)(6), as well as resilience under 23 U.S.C. 119, as further described in this preamble. Notably, 23 U.S.C. 150(c)(2)(C) limits performance measures to those described in 23 U.S.C. 150(c). The provision limits FHWA's authority to establish measures States use to assess performance only to the Interstate System and the NHS. However, the provision does not otherwise limit the meaning of “performance”.
Second, FHWA's proposed adoption of the GHG measure is consistent with other parts of Title 23 of the U.S.C., notably 23 U.S.C. 119. In the PM3 final rule, the Agency identified that 23 U.S.C. 119 provides additional statutory support for the GHG measure. 82 FR 5995. Section 119 of Title 23, U.S.C. sets forth the purposes of the NHPP, eligibilities for NHPP funding, purposes and requirements for State performance management (including asset management, significant progress and reporting requirements for performance measures), Interstate and bridge condition penalty provisions for falling below minimum conditions established by the Secretary, and environmental mitigation. FHWA noted that the performance management provisions in 23 U.S.C. 119(e) call for a performance-driven asset management plan that would “support progress toward the achievement of the national goals identified in section 150(b).” The 2017 GHG measure was developed to enhance the performance of the transportation system while protecting and enhancing the natural environment, consistent with the national goal under 23 U.S.C. 150(b)(6). Thus, by supporting the achievement of the national performance goals, the 2017 GHG measure, and by extension this proposed rule, supports FHWA's implementation of 23 U.S.C. 119. Additionally, the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, also known as the “Bipartisan Infrastructure Law”), amended 23 U.S.C. 119 to indicate that one of the purposes of the NHPP is “to provide support for activities to increase the resiliency of the National Highway System to mitigate the cost of damages from sea level rise, extreme weather events, flooding, wildfires, or other natural disasters.” IIJA Section 11105. By addressing the performance of the transportation system related to the largest source of U.S. CO
When FHWA repealed the 2017 GHG measure, the Agency exercised its discretion to reinterpret the definition of performance to exclude environmental performance due, in part, to the eligibility criteria for projects under the NHPP 23 U.S.C. 119(d). Under 23 U.S.C. 119(d)(1)(A), eligible projects must be “a project or part of a program of projects supporting progress toward the achievement of national performance goals for improving infrastructure condition, safety, congestion reduction, system reliability, or freight movement on the National Highway System.” FHWA determined that these goals are consistent with an interpretation of “performance” that focuses on the physical condition of the system and the efficiency of transportation operations across the system, and do not support FHWA's prior, broader interpretation of “performance” under 23 U.S.C. 150(c)(3), which encompassed environmental performance. 83 FR 24924.
FHWA has reexamined the rationale in the May 2018 repeal final rule and has determined that performance measures under 23 U.S.C. 150(c)(3) are not limited only to the national performance goals identified in 23 U.S.C. 119(d)(1). Section 119(d)(1), Title
FHWA also reiterates the Agency's statements in the PM3 final rule that several other provisions in Title 23, U.S.C., support FHWA's proposal to address GHG emissions in this rulemaking:
• 23 U.S.C. 101(b)(3)(G) is a transportation policy declaration that “. . . transportation should play a significant role in promoting economic growth, improving the environment, and sustaining the quality of life . . .”.
• 23 U.S.C. 134(a)(1) is a congressional statement of transportation planning policy that it is in the national interest “. . . to encourage and promote the safe and efficient management, operation, and development of surface transportation systems . . . while minimizing transportation-related fuel consumption and air pollution through metropolitan and statewide transportation planning processes identified in thischapter . . .”.
• 23 U.S.C. 134(c)(1) requires MPOs to develop long range plans and transportation improvement programs to achieve the objectives in 23 U.S.C. 134(a)(1) through a performance-driven, outcome-based approach to planning.
• 23 U.S.C. 134(h) defines the scope of the metropolitan planning process. Paragraphs (h)(1)(E) and (I), respectively, require consideration of projects and strategies that will “. . . protect and enhance the environment, promote energy conservation, improve the quality of life . . .” and “. . . improve the resiliency and reliability of the transportation system . . .”.
• 23 U.S.C. 135(d)(1) defines the scope of the statewide planning process. Paragraphs (d)(1)(E) and (I), respectively, require consideration of projects, strategies, and services that will “. . . protect and enhance the environment, promote energy conservation, improve the quality of life . . .”, and “. . . improve the resiliency and reliability of the transportation system . . .”.
• 23 U.S.C. 135(d)(2) requires the statewide transportation planning process to “. . . provide for the establishment and use of a performance-based approach to transportation decision-making to support the national goals described in section 150(b) of this title . . .”.
FHWA reaffirms that these Title 23, U.S.C., provisions make it clear that assessing infrastructure performance under 23 U.S.C. 150(c)(3) properly encompasses assessment of environmental performance, including GHG emissions and other climate-related matters. As noted in FHWA's May 2018 repeal of the 2017 GHG measure, nothing in the statute specifically requires FHWA to adopt a GHG emissions measure. 83 FR 24923. However, consistent with all of the statutory provisions cited above, no provision of law prohibits FHWA from adopting a GHG emissions measure.
Third, FHWA's decision to adopt the GHG measure under 23 U.S.C. 150(c)(3) does not conflict with the on-road mobile source emissions provision in 23 U.S.C. 150(c)(5). Section 150(c)(5), Title 23, U.S.C., requires that the Secretary establish performance measures for the purposes to carrying out the CMAQ Program under 23 U.S.C. 149. FHWA has established performance measures pursuant to 23 U.S.C. 150(c)(5) to assess traffic congestion and on-road mobile source emissions under 23 CFR 490.701 through 490.811. In the May 2018 repeal final rule, FHWA stated its belief that because Congress specifically designated a part of 23 U.S.C. 150(c) for on-road mobile source emissions measures, it is reasonable to conclude that Congress did not intend the other parts of 23 U.S.C. 150(c) to be used to address other similar or related performance measures, such as the GHG measure, and that by placing the on-road mobile source emissions provision in 23 U.S.C. 150(c)(5), Congress limited the types of emissions that could be the subject of a performance measure to those listed in the CMAQ statute. 83 FR 23924. FHWA has reexamined this reasoning and has determined that 23 U.S.C. 150(c)(5) is consistent with FHWA's proposal to adopt performance measures related to emissions if they support the achievement of the national performance goals.
Under 23 U.S.C. 150(c), Congress requires FHWA to establish performance measures for a number of programs, including the CMAQ Program under 23 U.S.C. 149. This language indicates congressional intent that FHWA establish a performance measure for on-road mobile source emissions for the purposes of carrying out the CMAQ Program. However, nothing in 23 U.S.C. 150 limits measures that take into account emissions only to measures established for the purposes of carrying out the CMAQ Program. FHWA is proposing that it is appropriate to examine relevant emissions as part of assessing performance of the Interstate and non-Interstate NHS in support of the NHPP.
Notably, Congress's inclusion of a specific CMAQ measure indicates that Congress was contemplating CMAQ and its coverage in terms of geography and types of emissions when drafting 23 U.S.C. 150. Since Congress did not expressly limit emissions measures to those related to CMAQ, it is reasonable to conclude that Congress intended FHWA to retain the discretion to adopt other emissions measures, such as the GHG measure.
In addition, the measures described in 23 U.S.C. 150(c) inherently include overlapping topics. For example, freight movement in 23 U.S.C. 150(c)(6) (see also 23 CFR part 490, subpart F) clearly involves congestion reduction or management, but CMAQ measures under 23 U.S.C. 150(c)(5) do not foreclose a congestion-related measure. Therefore, the best interpretation of 23 U.S.C. 150 contemplates measures that may overlap to achieve the national goals.
For all of these reasons, upon reexamination of FHWA's repeal of the 2017 GHG measure, FHWA asserts the proposed measure is consistent FHWA's authority under 23 U.S.C. 150(c).
FHWA is proposing to establish a GHG emissions measure for environmental performance in accordance with 23 U.S.C. 150(c)(3). This measure will incorporate an important environmental aspect of system performance into the set of national performance measures and support the national transportation goal of environmental sustainability in the Federal-aid highway program and the national performance management program established in 23 U.S.C. 150. FHWA has previously identified that a GHG performance measure will help address transportation GHG emissions. In the 2017 PM3 final rule, FHWA noted that reducing GHG emissions involves strategies to reduce the growth in future travel activity, such as the shift of travel to public transportation and non-motorized options, and improve system efficiency, such as optimizing the operation, use, and maintenance of transportation networks. The PM3 final rule noted that these activities are influenced by the planning activities and investment decisions of State DOTs and MPOs. 82 FR 8997. FHWA is reasserting that establishing a GHG measure in FHWA's Transportation Performance Management Program would help implement a national policy to reduce GHG emissions. As discussed in Section III(A) of this NPRM, the GHG performance measure would provide a consistent basis for estimating on-road GHG emissions and would aid States and MPOs in planning GHG emissions reductions and evaluating progress toward national, State, and local GHG goals. In addition, establishing a GHG measure also would inform the future investment decisions of the Federal Government, State DOTs, and MPOs towards achieving their targets or goals.
As discussed in Section III(A) of this NPRM, FHWA anticipates this measure will assist with comprehensive transportation planning. Current performance measures are integrated into the planning process and used to track progress and attainment of critical outcomes of the goals. 23 U.S.C. 135(d)(2) and 23 U.S.C. 134(h)(2). Establishment of the GHG emissions performance measure aligns with current requirements, goals, and processes under the planning requirements. Through these processes, the GHG performance measure would advance the Federal-aid highway program's national goal for environmental sustainability identified under 23 U.S.C. 150(b)(6). In addition, transportation investments advanced to achieve GHG performance measure targets can have co-benefits that would assist States and MPOs make progress towards other performance measures listed in 23 U.S.C. 119(d)(1)(A). For instance, the construction of a new grade-separated transit facility has the potential to reduce travel on neighboring roadways, which in turn would reduce congestion, improve safety, and reduce criteria pollutant emissions in addition to reducing on-road GHG emissions.
FHWA acknowledges that in proposing to establish this measure, FHWA would be largely reestablishing the measure repealed in 2018. 83 FR 24920. FHWA expects that States and MPOs have no reliance interests resulting from the repeal or, for that matter, from the 2017 GHG measure. FHWA repealed the 2017 GHG measure before the respective due dates for target setting or reporting, and FHWA assumes that no State DOTs or MPOs incurred any costs due to the promulgation and prompt repeal of that measure. Nor did the repeal itself impose any compliance costs on State DOTs or MPOs. Accordingly, FHWA does not expect this proposed rule to result in any increased burden on State DOTs or MPOs by virtue of the fact that FHWA previously established a similar measure that was repealed before any State DOTs or MPOs relied on and implemented its target setting and reporting requirements. The proposed measure would be a new one. As a result, FHWA expects that States or MPOs would not have any reliance interests based on the repeal of the 2017 GHG measure. Moreover, it is FHWA's policy judgment that implementation of the proposed GHG measure, which would advance the national policy objectives stated in section 1 of E.O. 13990 and E.O. 14008 and the Department's strategic goal of reducing GHG emissions from transportation and would increase accountability through reporting requirements, would outweigh any minimal reliance interests, to the extent they exist.
The May 2018 repeal final rule determined that “the measure imposes unnecessary regulatory burdens on State DOTs and MPOs with no predictable benefits,” and stated that “FHWA does not believe the speculative and uncertain benefits are a sufficient reason to retain the GHG measure, especially given the very definite costs associated with the measure.” 83 FR 24924-25. FHWA previously noted that since benefits that may possibly flow from the GHG measure came from its potential to influence State DOT and MPO investment decisions, and it is not possible to conclude with certainty the GHG measure would cause State DOTs and MPOs to make decisions that change CO
FHWA has reexamined this approach and anticipates that this proposed rule would result in substantial benefits that are neither speculative nor uncertain. This measure would create environmental sustainability benefits by supporting more informed choices about transportation investments and other policies to help achieve net-zero emissions economy-wide by 2050. Reporting GHG emissions and setting GHG emissions targets would increase public awareness of GHG emissions trends, promote the consideration of GHG emissions in transportation planning decisions, and more transparently characterize the impact of these decisions on GHG emissions. These benefits are not easily quantifiable.
Climate change results from the incremental addition of GHG emissions from millions of individual sources, which collectively have a large impact on a global scale. The totality of climate change impacts is not attributable to any single action, but is exacerbated (or
As stated in section 101 of E.O. 14008, U.S. engagement to address the climate crisis is both necessary and urgent to avoid “a dangerous, potentially catastrophic, climate trajectory.” Significant short-term global reductions in GHG emissions and net-zero global emissions by 2050 or before will be important. 86 FR 7619.
Achieving CO
The proposed GHG measure aligns with the national goal of reducing CO
FHWA has also re-evaluated the costs of compliance with the proposed measure and estimated total 10-year costs of $11,022,835 at a 7% discount rate and $12,887,491 at a 3% discount rate. These costs, which reflect 2020 loaded wage rates,
The 2018 repeal final rule evaluated whether the 2017 GHG measure was potentially duplicative of other government efforts, both at the Federal and State level, based on direction from previously applicable E.O.s to reduce regulatory costs and burdens.
Specifically, the 2018 repeal final rule identified that several States and MPOs were already tracking CO
In addition, the 2018 repeal final rule asserted that other Federal agencies, such as the EPA and the DOE, had undertaken regulatory and other efforts to address CO
The 2017 rule did not include any language about how the State DOTs and MPOs were to establish GHG performance targets. Since that time, however, the United States has committed to achieving net-zero GHG emissions by 2050 and established an aggressive national goal of reducing CO
In addition, FHWA is proposing to require that MPOs establish a single joint target for each urbanized area that contains NHS mileage and that is overlapped by the boundaries of two or more metropolitan planning areas. This requirement would help ensure a coordinated approach to GHG emission reductions in areas where multiple MPOs serve a single urbanized area. For example, the urbanized area for Boston, Massachusetts-New Hampshire-Rhode Island is overlapped by 11 MPOs, and the urbanized area for Tampa-St Petersburg, Florida, is overlapped by 4 MPOs. Coordinated systems and region-based approaches to reduce GHG emissions are intended to ensure the collaboration necessary to achieve meaningful reductions in GHG emissions. FHWA has not proposed joint targets with State DOTs because State DOTs and MPOs are already required to coordinate on the establishment of targets to the maximum extent practicable. 23 CFR 450.206(c) and 450.306(d)(2)(ii);
As the recent IPCC report emphasizes, time is of the essence in addressing GHG emissions, including those from the transportation sector. FHWA also anticipates that States should have adequate time to establish targets for the proposed GHG measure before targets are reported in the State Biennial Performance Report due to FHWA by October 1, 2022. This expedited schedule is proposed to allow this new measure to be in place at the start of TPM's 4-year reporting period, represented by the baseline performance period report due by October 1, 2022. FHWA recognizes that it is possible the due date to report State DOT initial targets for the proposed GHG measure may need to be adjusted. FHWA requests comment on what the due date should be in the event a final rule is not effective in advance of the October 1, 2022, reporting date. As stated elsewhere in this proposal, FHWA also will consider public comments to establish a GHG measure for States and MPOs in a final rule based on this proposed rule.
For the proposed measure, State DOTs would be required to establish 2- and 4-year targets, and report on progress biennially. MPOs would be required to establish 4-year targets for their metropolitan planning area. MPOs would establish additional 4-year targets for select urbanized areas. MPOs would report progress toward the achievement of targets every 4 years to the State DOT in a manner that is documented and mutually agreed upon. Pursuant to 23 U.S.C. 135(d)(2)(B)(i)(II), the proposed measure would be subject to 23 CFR 490.105(e)(2), which requires State DOTs to coordinate with relevant MPOs to establish targets, to the maximum extent practicable. The coordination would be accomplished in accordance with the transportation planning process set forth in 23 CFR part 450. FHWA recognizes the need for State DOTs and MPOs to have a shared vision on expectations for future condition/performance and target establishment process, one that is consistent with national, State, and local policies and targets for total GHG emission reductions.
FHWA proposes changes to two subparts of 23 CFR part 490: Subpart A—General Information, which applies to all of the regulations throughout part 490; and Subpart E—National Performance Management Measures to Assess Performance of the National Highway System, where FHWA proposes to locate the GHG measure. This section of the preamble describes the proposed changes and the reasons behind them. The proposed rule would apply to the 50 States, the District of Columbia, and Puerto Rico consistent with the definition of the term “State” in 23 U.S.C. 101(a). FHWA also invites comments on the proposed changes and identifies areas where comments may be particularly useful in facilitating implementation of the GHG measure.
FHWA proposes to amend § 490.101 by adding a new definition of the term
FHWA proposes to add five new paragraphs to § 490.105 regarding the establishment of performance targets and proposes adjustments to five existing paragraphs due to the proposed GHG measure. First, proposed new § 490.105(c)(5) would add a reference to proposed § 490.507(b) for the GHG performance measure to the existing list of applicable performance measures for State DOTs and MPOs that include, within their respective geographic boundaries, any portion of the applicable transportation network (
Furthermore, FHWA proposes changes to § 490.105(e) regarding the establishment of targets. FHWA proposes to revise existing § 490.105(e)(1), which addresses the schedule by which States are required to establish performance targets. The proposed revisions would clarify that State DOTs are required to establish initial targets for the GHG measure identified in proposed § 490.507(b) no later than October 1, 2022. The structure of the paragraph also would change to clarify the distinct deadline for performance targets for the GHG measure.
In addition, the proposed revisions would clarify the existing requirement that State DOTs were to establish initial targets for all other performance measures no later than February 20, 2018, by correcting the date to May 20, 2018. Under 23 U.S.C. 150(d)(1), State DOTs are required to establish such targets not later than one year after the promulgation of FHWA's final rule establishing performance measures. As discussed previously, FHWA promulgated the PM3 final rule establishing NHPP performance measures on January 18, 2017 (82 FR 5970), with an effective date of February 17, 2017. That effective date corresponds to the February 20, 2018, deadline for target establishment in the current regulations. However, FHWA later delayed the effective date of the PM3 final rule until May 20, 2017 (82 FR 14438), which corresponds to an initial date of May 20, 2018, for establishing targets for NHPP performance measures other than the proposed GHG measure. The proposed rule would codify the May 20, 2018, date in § 490.105(e)(1) for accuracy, even though the date has passed.
FHWA proposes to require that State DOTs establish initial targets for the GHG measure no later than October 1, 2022, to facilitate implementation of the GHG measure on the same schedule as the other NHPP performance measures. The proposed initial target establishment date is expected to synchronize this new GHG measure with the reporting cycle in part 490 for NHPP measures. FHWA believes that such a schedule will increase the potential for efficiencies and ease administrative efforts on the part of State DOTs and MPOs. FHWA anticipates that State DOTs would be able to establish targets to be reported in the State DOT's Biennial Performance Report due to FHWA by October 1, 2022. However, the proposed GHG measure is important to advancing the national policies discussed in the “Statement of the Problem, Legal Authority, and Rationale” section of this preamble to confront the climate crisis. FHWA encourages State DOTs to consider preparing for implementation of the proposed GHG measure to help advance those national policies.
Proposed new § 490.105(e)(10) would require declining targets for reductions in tailpipe CO
FHWA also proposes revisions to § 490.105(f) regarding MPO establishment of targets. FHWA proposes to revise § 490.105(f)(3) to clarify that the existing target establishment options for MPOs apply to the targets established for the metropolitan planning area. Specifically, FHWA proposes to add language clarifying that the MPOs shall establish targets “for the metropolitan planning area” by either of the two options described. No other changes to § 490.105(f)(3) are proposed, but the entire provision is included for convenience. In Part V(A) of this preamble, FHWA encourages submission of comments on the important issue of how targets established by State DOTs and MPOs for reduced emissions might be implemented in order to lead to improved environmental performance.
Proposed new § 490.105(f)(10) would require that certain MPOs establish joint targets for the GHG measure for select urbanized areas. These targets would be in addition to the targets for the metropolitan planning area required in § 490.105(f)(1)(i). FHWA proposes that when an urbanized area that contains mainline highways on the Interstate or non-Interstate NHS, and any portion of that urbanized area is overlapped by the metropolitan planning area boundaries of two or more MPOs, those MPOs would need to coordinate to establish a single, joint target for that urbanized area. FHWA proposes to require a joint target for select urbanized areas in recognition of the importance of all MPOs that serve the same urbanized area working together regionally to solve common transportation problems in order to address GHG emissions.
FHWA proposes in § 490.105(f)(10)(i) that NHS designations and urbanized
The proposed GHG measure would be subject to the biennial reporting requirements in § 490.107, which includes reporting targets and performance. Proposed § 490.107 would revise existing regulations governing biennial performance period progress reporting to provide the date for State DOTs to submit initial reports to FHWA that contain the GHG measure information, and would add references to the GHG measure identified in § 490.507(b). Proposed § 490.107 would add metric reporting requirements as part of the biennial reports State DOTs submit to FHWA that would be unique to the GHG measure. In addition, proposed § 490.107 would add that MPOs report to the State DOT their metric calculation method, along with the calculation of tailpipe CO
As proposed, revised § 490.107(b)(1) would update the existing requirement that State DOTs submit their first Baseline Performance Period Report (Baseline PPR) to FHWA by October 1, 2018, by providing that for the GHG measure, State DOTs are required to submit their first Baseline PPR containing information for the proposed GHG measure by October 1, 2022. This provision also would require State DOTs to submit subsequent Baseline PPRs to FHWA by October 1 every 4 years thereafter, which is consistent with other measures in 23 CFR part 490. FHWA proposes corresponding revisions to § 490.107(b)(2) and (3) to provide the first time information for the GHG measure would be included in the Mid Performance Period Progress Report (Mid PPPR) would be October 1, 2024, and October 1, 2026, for the Full Performance Period Progress Report (Full PPPR). These additions would fold performance reporting for the proposed GHG measure into the existing reporting requirement and schedule for other performance measures in 23 CFR part 490.
Proposed new § 490.107(b)(1)(ii)(H) would revise the existing regulations governing the content of Baseline PPRs to include a requirement that the State DOT report the GHG metric for the GHG measure and tailpipe CO
Proposed new § 490.107(b)(2)(ii)(J) would revise the requirements for the content of Mid PPPRs to include the GHG metric for the GHG measure and tailpipe CO
Proposed § 490.107(b)(3) would amend the existing regulations governing Full PPPRs to provide the schedule for State DOTs to submit the first such reports to FHWA containing the proposed GHG measure and to include information pertaining to the proposed GHG measure in the required content of such reports. Proposed revisions to the second sentence of § 490.107(b)(3)(i) would update the existing schedule requiring that State DOTs submit their first Full PPPR to FHWA by October 1, 2022, to require that the first Full PPPR containing the proposed GHG measure information be submitted to FHWA by October 1, 2026. This provision also would require State DOTs to submit subsequent Full PPPRs containing the proposed GHG measure information to FHWA by October 1 every 4 years thereafter, which is consistent with other measures in part 490.
Proposed new § 490.107(b)(3)(ii)(I) would revise the content requirements for the Full PPPRs to include the GHG metric for the GHG measure and tailpipe CO
Finally, proposed revisions to § 490.107(c)(1) would require each MPO to report in the system performance report in the metropolitan transportation plan, a description of its GHG metric calculation method, described in § 490.511(d), including the calculation of tailpipe CO
FHWA proposes to amend § 490.109 to update the sources of information that FHWA will use to assess NHPP target achievement and condition/performance progress for the GHG measure.
FHWA desires to use national datasets in a consistent manner as a basis for making its significant progress determinations. Thus, consistent with existing § 490.109(d), FHWA proposes to use specific data sources that could be accessed by State DOTs and others if they choose to replicate FHWA's determinations.
For consistency with existing requirements in part 490 that use August 15 as the date data will be extracted, FHWA is proposing to establish August 15 as the date on which FHWA will extract data from the HPMS and FUELS/FASH related to the proposed GHG measure. Providing a specific as-of-date related to the data used will create an incentive to ensure the data is submitted correctly and accurate information is available on that date. The August 15 date is considered the earliest time data reasonably would be available in a national data source. This proposed date considers the time State DOTs typically need to submit the relevant data to HPMS and FUELS/FASH, to process raw data, and to address missing or incorrect data that may be identified as a result of quality assessments conducted by the State DOT or FHWA. The proposed date also is necessary for FHWA to make the significant progress determination for the proposed GHG measure in a timely manner.
FHWA additionally proposes to revise § 490.109(d)(1)(vi), which would provide that baseline condition/performance data contained in FUELS/FASH, HPMS, and NBI of the year in which the Baseline PPR is due to FHWA represents baseline conditions/performances for the performance period for the measures in § 490.105(c)(1) through (5).
Finally, FHWA proposes to add § 490.109(d)(1)(vii) to indicate that FHWA will extract data contained within the HPMS, on August 15 of the year in which the significant progress determination is made. These data would account for VMT from the prior calendar year and the reference year.
FHWA proposes to add a new § 490.109(e)(4)(iv) to specify that in order for the FUELS/FASH data to be sufficient for FHWA's significant progress determination, it must be cleared by August 15th. The requirement for data submitted by a State DOT to be cleared prior to use in the significant progress determination is consistent with the requirements for other such data sets in 23 CFR part 490.
In addition, FHWA proposes to revise the existing regulations governing performance achievement by adding § 490.109(f)(1)(v) to require that if significant progress is not made for the target established for the GHG measure in § 490.507(b), the State DOT must document the actions it will take to achieve that target in its next biennial report. This provision would apply the same approach to the proposed GHG measure that the existing regulations use for other NHPP performance measures.
In addition, FHWA proposes to amend several sections of 23 CFR part 490, subpart E, to incorporate the GHG measure into existing regulations on NHPP performance measures.
FHWA proposes to amend § 490.503 by adding a new paragraph (a)(2) providing that the GHG measure specified in § 490.507(b) is applicable to all mainline highways on the Interstate and non-Interstate NHS. FHWA believes this applicability is appropriate because the measure, which is limited to CO
Proposed § 490.505 would add two new definitions to the Definitions section of the National Performance Management Measures to Assess Performance of the National Highway System. First, FHWA proposes to define the term
Second, FHWA proposes to define the term
FHWA proposes to revise the introductory text of § 490.507 to refer to “three” performance measures to assess the performance of the Interstate System and the performance of the non-
FHWA proposes to revise § 490.509 to add three new paragraphs regarding the GHG measure. Proposed § 490.509(f) would provide that FHWA plans to post on the FHWA website the CO
Proposed § 490.509(g) would establish a data source for total fuel use by fuel type, which is needed for the calculation of the GHG measure, as described in § 490.513. The proposed data source is FHWA's FUELS/FASH system, which reports gallons of fuel used by State across multiple fuel types.
Proposed § 490.509(h) would require that VMT data used come from HPMS. This data would include estimates of both NHS VMT and total VMT developed from HPMS data available as of August 15 and would represent the previous calendar year.
FHWA proposes to include in § 490.511 new provisions for the calculation of a “GHG metric,” the annual total tailpipe CO
In addition, FHWA proposes to add a new § 490.511(c) to require that tailpipe CO
FHWA also proposes to add a new § 490.511(d) to address the expectations for MPOs in implementing the GHG measure. Proposed § 490.511(d) would state that MPOs have additional flexibility, compared to State DOTs, in how they calculate the GHG metric, since MPOs may employ various models and data collection methods that can be used to estimate CO
Finally, FHWA proposes § 490.511(f) to require the reporting of two related CO
The existing performance management regulations define the term “measure” as an expression based on a metric that is used to establish targets and to assess progress toward achieving them. 23 CFR 490.101. In proposed § 490.513, FHWA would add a new § 490.513(d) to require computation of the GHG measure, specified in proposed § 490.507(b), to the nearest tenth of a percent according to a formula that would be set forth in the regulation. The computation would involve: (1) determining the difference between tailpipe CO
FHWA has provided an example of the metric and measure computation in the rulemaking docket (Docket No. FHWA-2001-0004) and invites comments on the proposed method.
The proposed measure is intended to support the national policy established under section 1 of E.O. 13990 and E.O. 14008 and at the Leaders Summit on Climate. This policy calls for GHG emissions reductions of 50 to 52 percent below 2005 levels by 2030 and for the U.S. to achieve net-zero emissions by 2050. FHWA encourages comments that address whether the proposed measure would support those national policies, the ways in which the proposed measure would do so or why it would not, and whether the final rule should contain any other provisions to better support those national policies.
FHWA is proposing to require declining targets for reducing tailpipe CO
However, it may be appropriate to implement improving targets that are structured to support longer-term GHG reduction goals. FHWA encourages comments on how to structure improving targets for the GHG measure, as well as the associated reporting and significant progress requirements in 23 CFR part 490, subpart A.
For example, FHWA seeks comment on potentially introducing a new requirement for State DOTs and MPOs to establish 8- and 20-year targets at the beginning of each 4-year performance period. These targets could inform decision-making to support of longer-term GHG reduction goals. The 8- and 20-year improving targets established as part of the first 4-year performance period would indicate a reduction as compared to the reference year, while subsequent 8- and 20-year targets would indicate a reduction as compared to previous 8- and 20-year targets. These targets could inform decision-making to support of longer-term GHG reduction goals. FHWA also seeks comments on how these targets could align with and inform existing transportation planning and programming processes.
Additionally, FHWA invites comments on the following:
• Besides requiring targets that reduce GHGs over time, are there any specific ways the proposed GHG measure could be implemented within the framework of TPM to better support emissions reductions to achieve national policies for reductions in total U.S. GHG emissions?
• What changes to the proposed measure or its implementation in TPM could better the impact of transportation decisions on CO
Finally, this NPRM proposes that when there are two or more MPOs with metropolitan planning area boundaries that overlap any portion of an urbanized area, and the urbanized area contains NHS mileage, the MPOs would be required to establish a joint urbanized area target in addition to metropolitan planning area targets. FHWA invites comments on the following questions:
• In instances that MPOs are establishing a joint urbanized area target, should FHWA require that the individual MPO-wide targets be the same as the jointly established urbanized area target?
• Should MPOs that establish a joint urbanized area target be exempt from establishing individual MPO-level targets, and instead only be required to adopt and support the joint urbanized area target?
• In cases where there are multiple MPOs with boundaries that overlap any portion of an urbanized area, and that urbanized area contains NHS mileage, should each of those MPOs establish their own targets, with no requirement for a joint urbanized area target?
• Are there other approaches to target setting in urbanized areas served by multiple MPOs that would better help MPOs reach net-zero emissions?
The Regulatory Impact Analysis (RIA) for the proposed rule estimates the costs associated with establishing the GHG measure, which are derived from the costs of implementing the GHG measure for certain components of the rule. The sections of part 490 amended by this proposed rule for which FHWA assumes associated costs in the RIA are target establishment by State DOTs and MPOs (23 CFR 490.105), reporting by State DOTs and MPOs (23 CFR 490.107), FHWA's assessment of significant progress toward State DOT targets and action plans by State DOTs that do not make significant progress (23 CFR 490.109), calculating the GHG metric (23 CFR 490.511), and calculating the GHG measure (23 CFR 490.513). To estimate the costs of this proposed rule, FHWA assessed the level of effort that would be needed to comply with each applicable section in part 490 with respect to the proposed GHG measure, including labor hours by labor category. The level of effort by labor category was monetized with loaded wage rates to estimate total costs. The RIA covers a 10-year study period (2022-2031). Total costs over this period are estimated to be $11.0 million, discounted at 7 percent, and $12.9 million discounted at 3 percent.
Benefits of the rule are not quantified since FHWA is unable to reasonably forecast the number and extent of actions of State DOTs and MPOs in response to this rule. However, it is anticipated that the measure will influence transportation decisions and result in significant reductions in GHG emissions. Office of Management and Budget (OMB) Circular A-4 (Regulatory Analysis) provides guidance on implementing a break-even analysis when benefits of a rule cannot be fully quantified. The RIA estimates the break-even threshold for tons of transportation-related CO
FHWA is seeking comment on assumptions that were developed as part of the RIA, as well as information on other benefits or costs that would result from implementation of the rule.
• The RIA includes assumptions regarding the applicability, level of effort and frequency of activities under proposed §§ 490.105, 490.107, 490.109, 490.511, and 490.513. Are these assumptions reasonable? Are there circumstances that may result in greater or lesser burden relative to the RIA assumptions?
• Would the staff time spent implementing this measure reduce the burden of carrying out other aspects of State DOT and MPO missions, such as forecasting fuel tax revenues? If so, please describe and provide any information on programs that would benefit from this measure and estimate any costs that would be reduced by implementing this measure.
• Would the proposed rule result in economies of scale or other efficiencies, such as the development of consulting services or specialized tools that would lower the cost of implementation? If so, please describe such efficiencies and provide any information on potential cost savings.
• Would the proposed rule result in the qualitative benefits identified in the RIA, including more informed decision-making, greater accountability, and progress on National Transportation Goals identified in MAP-21? Would the proposed rule result in other benefits or costs? Would the proposed measure change transportation investment decisions and if so, in what ways? For State DOTs and MPOs that have already implemented their own GHG measure(s), FHWA welcomes information on the impact and effectiveness of their GHG emissions measure(s).
The Office of Management and Budget (OMB) has determined that the proposed rule would be a significant regulatory action within the meaning of E.O. 12866 because it may raise novel legal or policy issues arising out of the President's priorities. However, it is anticipated that the proposed rule would not be economically significant for purposes of E.O. 12866. The proposed rule would not have an annual effect on the economy of $100 million or more. The proposed rule would not adversely affect in a material way the economy, any sector of the economy, productivity, competition, or jobs. In addition, the proposed changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. As described above, FHWA estimates that total costs associated with this proposed rule would be $11.0 million, discounted at 7 percent, and $12.9 million discounted at 3 percent. While FHWA is unable to quantify the benefits of the proposed rulemaking, FHWA describes the expected benefits qualitatively in the preamble and the regulatory impact analysis. These benefits include potentially significant reductions in GHG emissions resulting from greater consideration of GHG emissions in transportation planning, public awareness of GHG emissions trends, and better information on the impact of transportation decisions on GHG emissions. FHWA also performed a break-even analysis to analyze the relationship between the costs and potential benefits of the proposed rule. The full regulatory impact analysis is available in the docket.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule on small entities and has determined that it is not anticipated to have a significant economic impact on a substantial number of small entities. The proposed rule would affect two types of entities: State governments and MPOs. State governments are not included in the definition of small entity set forth in 5 U.S.C. 601. The MPOs are considered governmental jurisdictions, and to qualify as a small entity they would need to serve fewer than 50,000 people. The MPOs are designated to serve urbanized areas with populations of 50,000 or more.
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $168 million or more in any one year (2 U.S.C. 1532). In addition, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.
This proposed rule has been analyzed in accordance with the principles and criteria contained in E.O. 13132, and FHWA has determined that this proposed rule would not have sufficient federalism implications to warrant the preparation of a federalism assessment. FHWA also has determined that this proposed rule would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
FHWA has analyzed this proposed rule under the PRA and has determined the following:
FHWA has analyzed this proposed rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
FHWA has analyzed this proposed rule in accordance with the principles and criteria contained in E.O. 13175, “Consultation and Coordination with Indian Tribal Governments.” The proposed rule would implement statutory requirements under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) to establish measures for States to assess the performance of the Interstate and non-Interstate NHS, which FHWA interprets to include environmental performance. This measure applies to States that receive Title 23 Federal-aid highway funds, and it would not have substantial direct effects on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal laws. Accordingly, the funding and consultation requirements of E.O. 13175 do not apply and a Tribal summary impact statement is not required.
E.O. 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. FHWA has determined that this proposed rule does not raise any environmental justice issues.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Bridges, Highway safety, Highways and roads, Reporting and recordkeeping requirements.
Issued under authority delegated in 49 CFR 1.81 and 1.85.
In consideration of the foregoing, FHWA proposes to amend title 23, Code of Federal Regulations, part 490, as set forth below:
23 U.S.C. 134, 135, 148(i) and 150; 49 CFR 1.85.
(c) * * *
(5) 490.507(b) for the greenhouse gas (GHG) performance for the NHS;
(d)
(1) * * *
(v) 490.503(a)(2) for the GHG measure specified in § 490.507(b);
(4) MPOs shall establish targets for the GHG measure specified in § 490.507(b) that represent performance of the transportation network specified in § 490.503(a)(2), for urbanized areas meeting the criteria specified in paragraph (f)(10) of this section.
(e) * * *
(1)
(i) State DOTs shall establish initial targets not later than May 20, 2018, except as provided in paragraph (e)(1)(ii) of this section.
(ii) State DOTs shall establish initial targets for the GHG measure identified in § 490.507(b) not later than October 1, 2022.
(10)
(f) * * *
(1) * * *
(i) The MPOs shall establish 4-year targets, described in paragraph (e)(4)(iv) of this section, for all applicable measures, described in paragraphs (c) and (d) of this section. For the GHG measure described in paragraph (c)(5) of this section, the targets established shall be declining targets for reducing tailpipe CO
(3)
(i) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT target for that performance measure; or
(ii) Committing to a quantifiable target for that performance measure for their metropolitan planning area.
(10)
(i) NHS designations and urbanized areas shall be determined from the data, contained in HPMS, 1 year before the State DOT Baseline Performance Period Report is due to FHWA.
(ii) Only one target shall be established for the entire urbanized area regardless of roadway ownership. In accordance with paragraph (f)(9) of this section, each MPO shall report the joint target for the urbanized area.
(iii) The target established for each urbanized area shall represent a quantifiable target for that urbanized area.
(b) * * *
(1) * * *
(i) * * * State DOTs shall submit their first Baseline Performance Period Report to FHWA by October 1, 2018, and subsequent Baseline Performance Period Reports to FHWA by October 1st every 4 years thereafter, except for the GHG measure specified in § 490.105(c)(5), State DOTs shall submit their first Baseline Performance Period Report to FHWA by October 1, 2022, and subsequent Baseline Performance Period Reports to FHWA by October 1st every 4 years thereafter.
(ii) * * *
(H)
(2) * * *
(i) * * * State DOTs shall submit their first Mid Performance Period Progress Report to FHWA by October 1, 2020, and subsequent Mid Performance Period Progress Reports to FHWA by October 1st every 4 years thereafter, except for the GHG measure specified in § 490.105(c)(5), State DOTs shall submit their first Mid Performance Period Progress Report to FHWA by October 1, 2024, and subsequent Mid Performance Period Progress Reports to FHWA by October 1st every 4 years thereafter.
(ii) * * *
(J)
(3) * * *
(i) * * * State DOTs shall submit their first Full Performance Period Progress Report to FHWA by October 1, 2022, and subsequent Full Performance Period Progress Reports to FHWA by October 1st every 4 years thereafter, except for the GHG measure specified in § 490.105(c)(5), State DOTs shall submit their first Full Performance Period Progress Report to FHWA by October 1, 2026, and subsequent Full Performance Period Progress Reports to FHWA by October 1st every 4 years thereafter.
(ii) * * *
(I)
(c) * * *
(2) * * * For the GHG measure in § 490.105(c)(5), the MPO shall report a description of its metric calculation method, as described in § 490.511(d), and the calculation of tailpipe CO
The additions and revision read as follows:
(d) * * *
(1) * * *
(v) Data contained within FUELS/FASH on August 15th of the year in which the significant progress determination is made that represents performance from the prior year and for the reference year for targets established for the GHG measure in § 490.105(c)(5);
(vi) Baseline condition/performance data contained in FUELS/FASH, HPMS, and NBI of the year in which the Baseline Period Performance Report is due to FHWA that represents baseline conditions/performances for the performance period for the measures in § 490.105(c)(1) through (5); and
(vii) Data contained within the HPMS on August 15th of the year in which the significant progress determination is made that represents performance from the prior year and for the reference year for targets established for the GHG measure specified in § 490.105(c)(5).
(e) * * *
(4) * * *
(vi) A State DOT reported data are not cleared in the FUELS/FASH by the data extraction date specified in paragraph (d)(1) of this section for the GHG measure in § 490.105(c)(5).
(f) * * *
(1) * * *
(v) If significant progress is not made for the target established for the GHG measure in § 490.105(c)(5), then the State DOT shall document the actions it will take to achieve the target for the GHG measure.
(a) * * *
(2) The greenhouse gas (GHG) measure in § 490.507(b) is applicable to all mainline highways on the Interstate and non-Interstate NHS.
There are three performance measures to assess the performance of the Interstate System and the performance of the non-Interstate NHS for the purpose of carrying out the National Highway Performance Program (referred to collectively as the NHS Performance measures).
(b) One measure is used to assess GHG emissions, which is the percent change in tailpipe CO
(f) The FHWA will post on the FHWA website, no later than August 15th each year, the CO
(g) Fuel sales information needed to calculate the fuel consumed for the GHG measure in § 490.507(b) shall:
(1) Represent the total number of gallons of fuel consumed by fuel type; and
(2) Be based on fuels sales data for the previous calendar year, and reported to FUELS/FASH.
(h) Annual total vehicle-miles traveled (VMT) needed to calculate the GHG measure in § 490.507(b) shall come from HPMS data as of August 15, for the prior calendar year.
(a) * * *
(2) Annual Total Tailpipe CO
(c) Tailpipe CO
(d) For the GHG measure specified in § 490.507(b), MPOs are granted additional flexibility in how they calculate the GHG metric, described in paragraph (a)(2) of this section. MPOs may use the MPO share of the State's VMT as a proxy for the MPO share of CO
(f) Tailpipe CO
(1) The reference year, as required in § 490.107(b)(1)(ii)(H); and
(2) The 2 years preceding the reporting years, as required in § 490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and (b)(3)(ii)(I).
(d) The GHG measure specified in § 490.507(b) shall be computed to the nearest tenth of a percent as follows:
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Mojave Desert Air Quality Management District (MDAQMD or “District”) portion of the California State Implementation Plan (SIP). This revision concerns emissions of oxides of nitrogen (NO
Comments must be received on or before August 15, 2022.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2021-0923 at
Elijah Gordon, EPA Region IX, 75 Hawthorne St. (AIR-3-2), San Francisco, CA 94105. By phone: (415) 972-3158 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On November 23, 2018, pursuant to CAA section 110(k)(1)(B) and 40 CFR part 51, appendix V, the submittal for the MDAQMD Rule 1161 was deemed complete by operation of law.
We approved an earlier version of Rule 1161 into the SIP on February 27, 2003 (68 FR 9015). The MDAQMD adopted revisions to the SIP-approved version on January 22, 2018, and CARB submitted them to us on May 23, 2018. If we take final action to approve the January 22, 2018 version of Rule 1161, this version will replace the previously approved version of the rule in the SIP.
Emissions of NO
On November 17, 2017 (82 FR 54309), the EPA proposed to conditionally approve the MDAQMD's reasonably available control technology (RACT) demonstrations for the 1997 8-hour ozone NAAQS and the 2008 8-hour ozone NAAQS (referred to as the 2006 and 2015 RACT SIPs) based on deficiencies in several rules. One of the rules noted was Rule 1161, which did not meet current RACT based on comparisons of NO
Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
Generally, ozone nonattainment areas classified as Moderate or above (see CAA sections 182(b)(2) and 182(f)) are required to submit SIP revisions containing rules requiring RACT for each major source of NO
Guidance and policy documents that we used to evaluate enforceability, revision/relaxation, and rule stringency requirements for the applicable criteria pollutant include the following:
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
5. “NO
6. “NO
7. The Texas Commission on Environmental Quality in Section 117.3110—Cement Kilns, Emissions Specifications, May 23, 2007.
8. 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.
9. “Guidance Memorandum: Withdrawal of the October 9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions in State Implementation Plans and Implementation of the Prior Policy,” September 30, 2021.
This proposed rule meets CAA requirements and is consistent with relevant guidance regarding enforceability, RACT, and SIP revisions. We find that the District has fulfilled the requirements in its commitment letter for the 2006 and 2015 RACT SIP conditional approval (83 FR 5921, February 12, 2018) to revise the rule by lowering the NO
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted proposed rule because it fulfills all relevant requirements. We will accept comments from the public on this proposal until August 15, 2022. If we take final action to approve the submitted proposed rule, our final action will incorporate this rule into the federally enforceable SIP.
In this proposed rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference MDAQMD Rule 1161, which regulates NO
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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
• 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 the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 the 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, Incorporation by reference, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve in part, and conditionally approve in part, a State Implementation Plan (SIP) submission provided by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), through a letter dated January 25, 2021. This proposal pertains to certain infrastructure requirements of the Clean Air Act (CAA or Act) for the 2015 8-hour ozone national ambient air quality standards (NAAQS or standards). Whenever EPA promulgates a new or revised NAAQS, the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of that NAAQS. The January 25, 2021, SIP submission addresses all infrastructure elements except for those pertaining to the contribution to nonattainment or interference with maintenance in other states. EPA is proposing to approve the January 25, 2021, SIP revision with the exception of the prevention of significant deterioration (PSD) infrastructure elements, the air quality modeling element, and the visibility protection element. EPA is proposing to conditionally approve the portions of the submittal related to the prevention of significant deterioration (PSD) infrastructure elements and the air quality modeling element. EPA will act on the visibility protection element in a separate rulemaking.
Comments must be received on or before August 15, 2022.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2021-0947 at
Josue Ortiz Borrero, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8085. Mr. Ortiz Borrero can also be reached via electronic mail at
On October 1, 2015, EPA promulgated a revised primary and secondary NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts per million (ppm) to a new more protective level of 0.070 ppm.
With the exception of the visibility protection provisions of section 110(a)(2)(D)(i)(II), the prevention of significant deterioration (PSD) provisions related to major sources under sections 110(a)(2)(C),
As part of the January 25, 2021, SIP submission, Mississippi requested conditional approval of the PSD provisions related to major sources under sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J), and the air quality modeling elements under 110(a)(2)(K).
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements of section 110(a)(2) are listed below and are described in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” (2013 Guidance).
As discussed above, whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to submit infrastructure SIPs that meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions.
Unless otherwise noted below, EPA is following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's implementation plan for facial compliance with statutory and regulatory requirements, not for the
Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements.
Several regulations within Mississippi's SIP are relevant to emission limits and other air quality control measures. These include SIP-approved regulations 11 MAC, Part 2, Chapter 1, Chapter 3, and Chapter 5. Collectively, these regulations establish enforceable emissions limitations and other control measures, means, or techniques for activities that contribute to ozone concentrations in the ambient air. Additionally, Mississippi Code Title 49, section 49-17-17(h)
EPA has made the preliminary determination that the provisions contained in Mississippi's state statutes and SIP-approved state regulations are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance to satisfy the requirements of section 110(a)(2(A) for the 2015 8-hour ozone NAAQS.
Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. To meet the requirements of element B, Mississippi's January 25, 2021, submission cites to State Code Title 49, specifically section 49-17-17(g), which gives MDEQ authority to collect and disseminate information relating to air quality and pollution and the prevention, control, supervision, and abatement thereof. Additionally, annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58.
EPA has made the preliminary determination that Mississippi's SIP submission is adequate for the ambient air quality monitoring and data system requirements related to the 2015 8-hour ozone NAAQS.
This element consists of three sub-elements: enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for a NAAQS as required by CAA title I part C (
Mississippi's January 25, 2021, iSIP submission cites to two separate SIP-approved regulations. Specifically, Mississippi cites to 11 MAC, Part 2, Chapter 5 and portions of Chapter 2. These SIP-approved regulations provide that new major sources and major
EPA's PSD regulations at 40 CFR 51.166(l) require that modeling be conducted in accordance with Appendix W. As detailed in EPA's 2013 Guidance, approval of element C requires a fully approved and up-to-date PSD permitting program, which requires application of Appendix W consistent with EPA's PSD implementing regulations, (approval of PSD elements D(i)(II), and J is also contingent on an up-to-date PSD program). As noted, Mississippi's PSD program does not meet these updated modeling requirements and, for this reason, the State has committed to update its PSD regulations to reference the most current version of Appendix W and submit a SIP revision containing the revised regulations within one year of EPA's conditional approval. In this notice of proposed rulemaking, EPA is proposing to conditionally approve Mississippi's January 25, 2021, submission related to the PSD element of 110(a)(2)(C).
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”) and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).
To meet prong 3, Mississippi's January 25, 2021, iSIP submission cites to SIP-approved regulation 11 MAC, Part 2, Chapter 5. This regulation provides that new major sources and major modifications in areas of the State designated attainment or unclassifiable for any given NAAQS are subject to a federally-approved PSD permitting program under part C of title I of the CAA.
However, as described in section IV.3. concerning 110(a)(2)(C) above, the most current version of Mississippi's SIP-approved PSD regulations do not reference the most updated version of EPA's
EPA has made the preliminary determination that Mississippi's SIP and practices are adequate to meet the prong 3 requirements related to the 2015 8-hour ozone NAAQS, with the exception of the citation to an outdated version of Appendix W. Accordingly, EPA is proposing to conditionally approve Mississippi's infrastructure SIP submission with respect to the PSD provisions for section 110(a)(2)(D)(II)[prong 3].
Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126(b) of the Act, relating to interstate and international pollution abatement. Mississippi's January 25, 2021, iSIP submission cites to SIP-approved 11 MAC, Part 2, Chapter 5. This regulation provides where 40 CFR 51.166 was adopted by reference into the SIP and requires notification of potential impacts from new or modified sources to state and local agencies of neighboring states. Additionally, Mississippi has no pending obligations under sections 115 or 126 of the CAA. EPA has made the preliminary determination that Mississippi's and practices are adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2015 8-hour ozone NAAQS.
Section 110(a)(2)(E) requires that each implementation plan provide: (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA's rationale respecting each sub-element for which EPA is proposing action in this rulemaking is described below.
In support of sub-element 110(a)(2)(E)(i), Mississippi's SIP submission demonstrates that it has adequate authority to carry out its SIP. Specifically related to sub-element 110(a)(2)(E)(i), Mississippi's infrastructure SIP submission cites to Mississippi Code Title 49 section 49-17-17(d), which gives MDEQ authority to accept and administer loans and grants from the federal government, and from other sources, public and private, for carrying out any of its functions. Additionally, MDEQ cites to Mississippi Code Title 49 section 49-17-17(h), which gives authority under State law to
As further evidence of the adequacy of MDEQ's resources, EPA submitted a letter to Mississippi on November 4, 2021, outlining CAA section 105 grant commitments and the current status of these commitments for fiscal year 2022. The letter EPA submitted to Mississippi can be accessed at
Section 110(a)(2)(E)(ii) requires that the State comply with section 128 of the CAA. Section 128 requires that the SIP contain requirements providing that: (a)(1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (a)(2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed.
On April 8, 2013, EPA incorporated Article 4, Section 109 of the Mississippi Constitution and portions of Mississippi Code sections 25-4-25, -27, -29, -101, -103, and -105 into the Mississippi SIP to meet the CAA section 128(a)(1) public interest requirements for state boards and the conflict of interest disclosure requirement of section 128(a)(2).
First, Mississippi Code section 49-2-5 was incorporated into the SIP to address conflicts of interest for the Mississippi Commission on Environmental Quality, which has CAA enforcement order approval authority. This provision addresses the requirement in CAA section 128(a)(1) by prohibiting a majority of the members of the Commission from deriving any significant portion of their income from persons subject to permits under the Federal Clean Air Act or enforcement order under the Federal Clean Air Act. In addition, this provision also addresses any potential conflict of interest by a member of the Commission by requiring such member to disclose potential conflicts and recuse himself or herself from participating in or voting on any matter related to such conflict of interest.
Next, EPA approved SIP revisions to address section 128 requirements for the MDEQ Permit Board. Specifically, EPA approved “Air Emissions Regulations for the Prevention, Abatement, and Control of Air Contaminants” Title 11, Part 2, Chapter 1, Rule 1.1. Chapter 1, Rule 1.1, which ensures that at least a majority of the members of the Permit Board shall represent the public interest and shall not derive any significant portion of their income from persons subject to permits or enforcement orders under the Clean Air Act.
Additionally, EPA approved revisions to the MDEQ Permit Board procedural rules, “Regulations Regarding Administrative Procedures Pursuant to the Mississippi Administrative Procedures Act”, Title 11, Part 1 Chapter 5, Rule 5.1. This rule describes the composition of the MDEQ Permit Board and provides that a majority of board members represent the public interest and not derive any significant portion of their income from persons subject to permits or enforcement orders under the CAA. It also provides for annual certification as to whether each member derives a significant portion of income from persons subject to permits or enforcement orders under the CAA and a process for replacing members as needed to ensure that a majority does derive a significant portion of income from regulated entities.
EPA has made the preliminary determination that Mississippi's SIP has adequately addressed the requirements of section 128(a), and accordingly have met the requirements of section 110(a)(2)(E)(ii). EPA is proposing to approve Mississippi's infrastructure SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and (iii).
Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing: (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. EPA's rules regarding how SIPs need to address source monitoring requirements at 40 CFR 51.212 require SIPs to exclude any provision that would prevent the use of credible evidence of noncompliance.
Additionally, states are required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI), pursuant to Subpart A to 40 CFR part 51—“Air Emissions Reporting Requirements.” The NEI is EPA's central repository for air emissions data. All states are required to submit a comprehensive emission inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for criteria pollutants and the precursors that form them including nitrogen oxides and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Mississippi most recently published triennial compiled emissions information as part of the 2017 NEI. EPA compiles the emissions data, supplementing it where necessary, and releases it to the public through the website:
MDEQ's January 25, 2021, infrastructure SIP submission identifies that Mississippi Code Title 49 section 49-17-21, states that the Mississippi Commission on Environmental Quality may require the installation, maintenance, and use of such monitoring equipment and methods at such locations and intervals as the Commission deems necessary. In addition, MDEQ cites to SIP-approved rule 11 MAC, Part 2, Chapter 2, Rule 2.6, which lists the requirements for compliance testing and reporting that
Further, MDEQ cites to Mississippi Code Title 49 section 49-17-21, which states that MDEQ has the authority to require the maintenance of records related to the operation of air contaminant sources and that any authorized representative of the Commission may examine and copy any such records or memoranda pertaining to the operation of such contaminant source. Finally, Mississippi cited to SIP-approved 11 MAC, Part 2, Chapter 2, Rule 2.9, which requires that copies of records relating to the operation of air contamination sources be submitted to the Permit Board, as required by the permit, or upon request.
Also note that Section 11 MAC, Part 2, Chapter 1,
EPA has made the preliminary determination that Mississippi's SIP submission and practices adequately provide for the stationary source monitoring systems related to the 2015 8-hour ozone NAAQS. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(F).
Section 110(a)(2)(G) of the Act requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Mississippi's January 25, 2021, submission cites to Mississippi Code Title 49 section 49-17-27, stating that in the event an emergency is found to exist by the Commission, it may issue an emergency order as the circumstances may require. Additionally, Mississippi cites to SIP-approved regulation 11 MAC, Part 2, Chapter 3, which states that the MDEQ Director may determine that an Air Pollution Emergency Episode condition exists at one or more monitoring sites solely because of emissions from a limited number of sources, and that he may order such source or sources to put into effect the emission control programs which are applicable for each episode stage. Further, 11 MAC, Part 2, Chapter 3 lists regulations that prevent the excessive buildup of air pollutants during air pollution episodes.
EPA has made the preliminary determination that Mississippi's SIP submission adequately addresses emergency powers related to the 2015 8-hour ozone NAAQS. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(G).
Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements.
To comply with the requirements of section 110(a)(2)(H)(i), Mississippi's January 25, 2021, infrastructure SIP submission cites to Mississippi Code Title 49 section 49-17-17(h), which provides MDEQ with the necessary statutory authority to revise the SIP to accommodate changes to the NAAQS. Mississippi Code Title 49 section 49-17-17(h) also provides MDEQ with the necessary statutory authority to revise the SIP if the Administrator finds the plan to be substantially inadequate to attain the NAAQS to comply with the requirements of section 110(a)(2)(H)(ii).
EPA has made the preliminary determination that Mississippi's SIP submission adequately demonstrates a commitment and authority to provide future SIP revisions related to the 2015 8-hour ozone NAAQS when necessary. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(H).
Section 110(a)(2)(J) has four components related to: (1) consultation with government officials, (2) public notification, (3) PSD, and (4) visibility protection.
EPA has made the preliminary determination that Mississippi's SIP submission adequately demonstrates that the State meets applicable requirements related to consultation with government officials for the 2015 8-hour ozone NAAQS. Thus, EPA is proposing to approve Mississippi's infrastructure SIPs for the 2015 8-hour ozone NAAQS with respect to the general requirement in section 110(a)(2)(J) for this provision.
EPA has made the preliminary determination that Mississippi's SIP submission adequately demonstrates that the State meets applicable requirements related to the ability to provide public notification of section 110(a)(2)(J) for the 2015 8-hour ozone NAAQS. Thus, EPA is proposing to approve Mississippi's infrastructure SIPs for the 2015 8-hour ozone NAAQS with respect to the general requirement in section 110(a)(2)(J) for this provision.
However, as described in section IV.3. concerning 110(a)(2)(C) above, the most current version of Mississippi's SIP-approved PSD regulations do not reference the most updated version of EPA's
Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to EPA can be made. 110(a)(2)(K) has two components related to: (1) the performance of air quality modeling, and (2) the submission of data related to such air quality modeling to the Administrator.
Mississippi's January 25, 2021, iSIP submission cites to two separate SIP-approved regulations to meet the modeling requirement of element K. Specifically, Mississippi cites to 11 MAC, Part 2, Chapter 2 and 11 MAC, Part 2, Chapter 5. These SIP-approved regulations include requirements for air quality modeling and reporting for the PSD permitting program. However, as described in section IV.3 concerning 110(a)(2)(C) above, the most current version of Mississippi's SIP-approved PSD regulations cited above do not reference the most updated version of EPA's
Because of the outdated reference to Appendix W modeling, EPA is proposing to conditionally approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(K).
Section 110(a)(2)(L) requires that the owner or operator of each major stationary source pay the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.
Mississippi January 25, 2021, infrastructure SIP submission cites to Mississippi Code Title 49 section 49-17-30, which provides for the assessment of Title V permit fees to cover these costs. The State notes that these title V operating program fees cover the reasonable cost of implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that Mississippi adequately provides for permitting fees related to the 2015 8-hour ozone NAAQS when necessary. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(L).
Section 110(a)(2)(M) of the Act requires states to provide for the consultation with, and the participation of, local political subdivisions affected by the SIP, during the SIP development process. To meet this requirement, MDEQ cites to Mississippi Code Title 49 section 49-17-17(c), which gives the Commission the statutory authority to advise and consult with any political subdivisions in the State. Additionally, Mississippi Code Title 49 section 49-17-19(b), requires that the Commission conduct public hearings in accordance with EPA regulations prior to establishing, amending, or repealing standards of air quality. Furthermore, MDEQ has demonstrated consultation with, and participation by, affected local entities through its work with local political subdivisions during the development of its Transportation Conformity SIP and has worked with the Federal Land Managers as a requirement of the regional haze rule. EPA has made the preliminary determination that Mississippi's SIP submission and practices adequately demonstrate consultation with affected local entities related to the 2015 8-hour ozone NAAQS when necessary. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(M).
With the exception of the visibility provisions of section 110(a)(2)(D)(i)(II) and PSD provisions related to major sources under sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), and the modeling provision of 110(a)(2)(K), EPA is proposing to approve Mississippi's January 25, 2021, SIP submission for the 2015 8-hour ozone NAAQS for the above described infrastructure SIP requirements. Further, EPA is proposing to conditionally approve the portions of the 2015 8-hour Ozone NAAQS iSIP that address the PSD related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J), and the modeling requirements of 110(a)(2)(K). Mississippi submitted a separate submittal to address CAA section 110(a)(2)(D)(i)(I)[prongs 1 and 2], and EPA is addressing that revision in a separate rulemaking.
Under the CAA, the Administrator is required to approve a SIP submission
• 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).
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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
National Science Foundation.
Notice of proposed rulemaking.
The National Science Foundation (NSF), in consultation with the Secretary of Education, is proposing standards for how a CyberCorps® SFS scholarship would be repaid if a scholarship recipient fails to meet the program requirements, as well as the process to discharge the repayment obligation, in whole or in part, in certain circumstances.
Interested parties should submit written comments on or before September 13, 2022 to be considered in the formation of the final rule.
Submit comments in response to this proposed rule to the Federal eRulemaking portal at
Comments submitted in response to this document will be made publicly available and are subject to disclosure under NSF's Freedom of Information Act regulations at 45 CFR part 612. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information, or any information that you would not want publicly disclosed. To confirm receipt of your comment(s), please check
William Grant, Assistant General Counsel, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314; telephone: 703-292-8060; email:
The Cybersecurity Enhancement Act of 2014 (15 U.S.C. 7442), as amended by the National Defense Authorization Acts for 2018 and 2021, authorized NSF, in coordination with the U.S. Office of Personnel Management (OPM) and the U.S. Department of Homeland Security (DHS), to implement the CyberCorps® SFS scholarship program to recruit and train the next generation of information technology professionals, industrial control system security professionals, and security managers to meet the needs of the cybersecurity mission for Federal, state, local, and tribal governments.
Finding cybersecurity talent can be challenging for government organizations. This program helps hiring managers by providing scholarships to candidates from institutions with some of the top cybersecurity programs in the country. Special hiring authorities in 15 U.S.C. 7442(e) allow Federal organizations, without regard to any provision of chapter 33 of title 5 governing appointments in the competitive service, to noncompetitively appoint SFS graduates. In addition, upon fulfillment of their service term, they may be converted noncompetitively to a term, career-conditional, or career appointment. If converted to a term appointment, an agency may later noncompetitively convert such employee to a career-conditional or career appointment before the term appointment expires.
The CyberCorps® SFS program is led and managed by NSF in coordination with OPM and DHS. National Science Foundation oversees all aspects of the program, including:
• Program solicitations, merit review process, site visits, grant awards, assessing progress via annual and final reports, managing financial functions, representing the program in interactions with Federal agencies and other organizations within the academic/scientific communities;
• Outreach to current and prospective CyberCorps® SFS grantee institutions and principal investigators (PIs);
• Coordination with OPM via an annual reimbursable Inter-Agency Agreement (IAA) for student management;
• Coordination with DHS on connecting students with government agencies via CyberCorps® SFS Job Fairs;
• Implementing contracts for independent continuous program monitoring and program-level evaluation;
• Coordination with the U.S. Department of the Treasury (Treasury) and/or Department of Education on collections and repayments for the small number of students who do not fulfill their service obligations; and
• Processing requests for partial or complete releases from the service obligation under appropriate circumstances.
The OPM Program Management Office is supported by a reimbursable Interagency Agreement with NSF and manages the operational aspects of CyberCorps® SFS student scholarships including:
• Creating and distributing Student Service Agreements, policy, guidance and other program documents;
• Tracking CyberCorps® SFS students from entry into the program until eight years following the completion of their post-graduation service obligation;
• Facilitating the registration of new CyberCorps® SFS students and monitoring their academic status with participating institutions during the Scholarship Phase;
• Reviewing and approving student job offers and monitoring the service obligations reported by students;
• Coordinating collection of information for repayments and waiver requests to NSF; and
• Maintaining the CyberCorps® SFS program website (
DHS serves as a strategic partner to promote cybersecurity education and workforce development; helps strengthen partnerships between CyberCorps® SFS institutions and Federal, state, local, and tribal governments; serves as a technical advisor; sponsors annual CyberCorps® SFS Job Fairs; and organizes and maintains the CyberCorps® SFS Hall of Fame website. In addition, DHS partners with the National Security Agency on the National Centers of Academic Excellence in Cybersecurity (NCAE) initiative to:
• Establish standards for cybersecurity curricula and academic excellence;
• Include competency development among students and faculty;
• Value community outreach and leadership in professional development;
• Integrate cybersecurity practice within the institution across academic disciplines; and
• Actively engage in solutions to challenges facing cybersecurity education.
Agencies may recruit SFS students for internships during their academic term and permanent placement after graduation. Agencies interested in recruiting from the pool of SFS Scholars can gain access to these candidates by registering as an agency official at the OPM SFS Portal to browse the SFS student pool. In addition, closed hiring events specifically for the SFS students are held twice a year to give agencies an opportunity to interview and even hire SFS students on the spot. The Winter and Summer CyberCorps® Job Fairs usually occur in January and September, respectively. The Winter CyberCorps® Job Fair, sponsored jointly by NSF and DHS, is typically held at a hotel in the Washington, DC metro over a three-day period. Students visit agency booths and interview rooms to speak with representatives about internship and hiring opportunities and to gain a better understanding of what it would be like to work at a particular agency and in government. The 2021 and 2022 Winter Job Fairs were held virtually due to COVID-19 restrictions. The Summer Virtual Job Fair allows SFS students to visit participating agencies' virtual booths to search for possible employers. Each agency booth includes a representative for students to connect with and talk online regarding potential employment during a one-day period. At each virtual booth, students can view current job postings and submit resumes to apply for jobs.
The first cohort of 31 students was enrolled in Fall 2001 and the first nine students graduated the following year. As of December 2021, 3,842 students have graduated from the program and a total of 4,773 students have been enrolled in the program since its inception. There are 91 institutions of higher education with active projects. In addition, there are 28 community colleges that participate as a partner with a CyberCorps® SFS university, and eight community colleges in the CyberCorps® SFS Community College Cyber Pilot (C3P) program. A list of participating institutions and additional information on this program can be found at
This program provides funds to institutions of higher education that award scholarships to students who agree to work after graduation for a Federal, state, local, or tribal government organization in a position related to cybersecurity for a period equal to the duration of the scholarship, to be started within 18 months and to be completed within five years of entering the commitment phase of the program. Failure to satisfy the academic requirements of the program or to complete the service obligation would result in forfeiture of the scholarship award, which must either be repaid, or be treated as a Direct Unsubsidized Loan to be repaid, together with any accrued interest and fees. The statute further permits the Director to waive, in whole or in part, the service obligation or the obligation to repay the scholarship under certain conditions.
Currently, in the event that a scholarship recipient is required to repay the scholarship award, the academic institution providing the scholarship collects the repayment amounts within a period of time, or the repayment amounts are treated as Direct Unsubsidized Loan. Unfortunately, in many cases, the participating CyberCorps® SFS institution is neither able to collect a repayment nor convert it to a loan due to lack of cooperation from a scholarship recipient, closing an NSF award at an institution, or the amounts exceeding annual or aggregate loan limits under 34 CFR 685.203. It results with participants being required to submit a one-time payment to NSF or being sent to Treasury for collection action. See 31 U.S.C. 3711(g); 3716(c); 3720A(a).
After discussions with the Department of Education, NSF is proposing that the conversion of the scholarship to a Direct Unsubsidized Loan will be done by NSF in collaboration with the Department of Education rather than by an academic institution. Historically, the group of scholars who need the repayment processing has been small, but it requires unproportionally time-intensive efforts by OPM, NSF, Treasury, as well as by the academic institutions. Each of the almost 100 participating academic institutions individually may have not more than one case every five years. This paucity of cases at the individual institution level nevertheless generates a large volume of questions in the aggregate to be handled by NSF and OPM. In addition, there may be significant process differences between different institutions, resulting in students being treated inconsistently across institutions, with some receiving relief while others are put into repayment.
After consultation with the Department of Education, the proposed rule also specifies that scholarships converted to a Direct Unsubsidized Loan by the Secretary of Education are not counted against the scholarship recipient's annual or aggregate loan limits under 34 CFR 685.203, similar to the Teacher Education Assistance for College and Higher Education (TEACH) scholarship. After conversion, the Direct Unsubsidized Loan will be subject to the Department of Education's normal processes and procedures for those loans, including repayment, discharge, or waiver of the repayment obligation. Once a scholarship has been converted to a Direct Unsubsidized Loan, it may not be reconverted back to a CyberCorps® SFS scholarship, NSF will have no further authority to discharge or waive the repayment obligation, and borrowers will have to follow the Department of Education's normal student loan rules for that program. That is, the obligation will convert from one that is owed to NSF to one that is owed to Education.
Considering that the proposed rule provides a benefit to the scholarship recipients by ensuring a successful conversion to a Federal Unsubsidized Loan rather than requiring a one-time payment or a payment agreement with the Treasury, this option will be provided not only to new scholarship recipients but also to student who are already in the program via an optional amendment to their agreement to serve or repay.
In addition to the process of conversion of the scholarship to a Direct Unsubsidized Loan, NSF proposes standards to govern the process to discharge the repayment obligation where “compliance by the [scholarship recipient] with the obligation is impossible or would involve extreme hardship to the [scholarship recipient], or if enforcement of such obligation with respect to the [scholarship recipient] would be unconscionable.” (15 U.S.C. 7442(
For the purposes of this proposed rule, NSF has determined the circumstances for discharge include death, total and permanent disability, or extreme hardship, as evidenced in a written request to be provided to and approved by the Director. This set of circumstances has been selected in consultation with other Federal agencies and modeled on the TEACH scholarship program as well as the definition of the total and permanent disability in § 620.5 of this proposed rule. Also, an interagency management board, consisting of representatives from NSF, OPM, and DHS, would discuss each request and make a recommendation to the Director. The management board meets 12 times a year and considers requests for deferral of obligation, discharge of agreement to serve, as well as cases that need to be recommended for a repayment or collection.
The proposed rule lays out definitions to describe elements of the SFS program and clarifies the requirement to document the scholarship recipient's service obligation. It formalizes a process for deferral of the service obligation where a scholarship recipient is continuing with advanced study or professional development, for medical reasons, military service, or other exceptional circumstances. Because there is no current, standard process for deferral and up to now each individual institution has had to set up their own policies, the proposed rule establishes a consistent process across all participating institutions. This process is modeled on the Department of Education's TEACH program and, based on historical data, would affect about 40 scholarship recipients a year. If a scholarship recipient does not qualify for a deferral or discharge, and does not meet their service obligation, under the statute they may repay the scholarship, or it will be converted to a Direct Unsubsidized Loan. NSF and OPM will send information collected on the Agreement to Serve or Repay together with the loan amount to the Department of Education.
There are three main reasons that the proposed rule is needed. First, the Federal Unsubsidized Loan, resulting from the scholarship conversion is subject to repayment in accordance with terms and conditions specified by the Director of the National Science Foundation (in consultation with the Secretary of Education) in regulations promulgated to carry out the subsection (j) of 15 U.S.C. 7442. Second, the lack of flexibility in current practice creates inefficiencies for students and agencies in administering the program. In many cases, the participating CyberCorps® SFS institution is neither able to collect a repayment nor convert it to a loan due to lack of cooperation from a scholarship recipient, closing an NSF award at an institution, or the amounts exceeding annual or aggregate loan limits under 34 CFR 685.203. It results in participants being required to submit a one-time payment to NSF or being sent to Treasury for a payment agreement. There is inefficiency and significant administration cost for institutions and agencies due to the lack of an automatic and uniform way to handle repayment and loan conversion. Lastly, the lack of flexibility in current practice prevents students from receiving any benefits from a Direct Unsubsidized Loan if the conversion by an institution is impossible.
Three groups will be affected by the proposed rule: Students (SFS scholars), universities (SFS institutions), and Federal agencies. The Table 1, Table 2, and Table 3 summarize expected impacts on those three groups.
The vast majority of students who enroll in the CyberCorps® SFS program will complete their studies and will move into Federal, state, local, or tribal government service, where the vast majority will complete their service obligations. Table 4 below summarizes the number of students released from obligations (granted a waiver or have a request pending) as of November 1, 2021.
The costs resulting from the notice of proposed rulemaking (NPRM) includes one-time costs and recurring costs. The one-time costs consist of time needed to read and understand the proposed rule from universities and affected students and time for current students to learn about, decide, and complete paperwork to opt-into loan conversion when the option is available. The recurring costs consist of time to complete any additional paperwork to agree on loan conversion and new cost for the Department of Education to handle loan conversion.
SFS scholars (students), SFS institutions (universities), and three Federal agencies (NSF, OPM, and Treasury) will benefit from the NPRM. First, SFS institutions will save their time from responding to SFS scholars seeking information when they are not completing the service obligation. The estimated saving will be 20 hours per year. The total estimated saving will be $24,000 if the estimated number of cases is 20 per year with $60- per hour as a wage rate.
Alternatives of this NPRM could be continuing with the current practice of an ad-hoc payment plan that could happen at SFS institutions or being transferred to the U.S. Treasury. This alternative would not provide the benefits to scholarship recipients, SFS institutions, and agencies that the proposed rule is intended to address. Another alternative is to extend the window for government service (
These Executive orders direct agencies to assess all costs, benefits and available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, safety effects, distributive impacts, and equity). These Executive orders emphasize the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” as supplemented by Executive Order 13563, “Improving Regulation and Regulatory Review.” Accordingly, the Office of Management and Budget has reviewed this proposed rule.
Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule does not have any federalism implications, as described above.
A major rule cannot take effect until 60 days after it is published in the
This proposed rule implicates several information collection requirements under the Paperwork Reduction Act (44 U.S.C. 3501
In addition, this proposed rule contains a new information collection requirement. As discussed in this proposed rule, this information collection will provide contact information for the participants in the program and will allow NSF to work with the Department of Education to convert the scholarship to Direct Unsubsidized Loan.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the program, including whether the information will have practical utility; (b) The accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methods and the assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notification will be summarized and/or included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record.
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), NSF certifies that this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities.
For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, state, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.
Administrative practice and procedure, Colleges and universities, Grant programs, Reporting and recordkeeping, Scholarships and fellowships.
42 U.S.C. 1870.
The CyberCorps SFS Scholarship for Service (SFS) program provides funds to institutions of higher education that award scholarships to students who agree to work after graduation for a Federal, state, local, or tribal government organization in a position related to cybersecurity for a period equal to the duration of the scholarship, to be started within 18 months and to be completed within five years of entering the Commitment Phase of the SFS program. Failure to satisfy the academic requirements of the program or to complete the service obligation results in forfeiture of the scholarship award, which must either be repaid or converted to a Direct Unsubsidized Loan. If converted, the loan, together with any accrued interest and fees, is subject to repayment to the Secretary of Education and may not be reconverted to a scholarship.
If a scholarship recipient is performing service in accordance with the agreement to serve or repay, the scholarship recipient must, within 30 days of the beginning of the service and upon completion of each year of service obligation, provide to the Director documentation of that service on a form approved by the SFS program office with all required information and certifications as defined on the form.
(a) A scholarship recipient who has completed, or who has otherwise ceased
(1) Enrollment in a program of study or engagement in approved professional activity which would contribute to further professional development and/or cybersecurity workforce readiness for the scholarship recipient;
(2) A condition that is a qualifying reason for leave under the Family and Medical Leave Act (FMLA);
(3) A call to order to Federal or state active duty or active service as a member of a Reserve Component of the Armed Forces named in 10 U.S.C. 10101, or service as a member of the National Guard on full-time National Guard duty, as defined in 10 U.S.C. 101(d)(5); or
(4) Other exceptional circumstances significantly affecting the scholarship recipient's ability to serve as determined by the Director.
(b) A scholarship recipient must apply for a deferral prior to being subject to any of the conditions under § 620.6 that would cause the CyberCorps SFS scholarship to be converted to a Direct Unsubsidized Loan.
(c) A scholarship recipient who applies for deferral must provide the Director with documentation supporting the request as well as current contact information including home address, email address, and telephone number.
(d) The Director notifies the scholarship recipient on the outcome of the application for deferral.
(a)
(1)
(2)
(i) Is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that—
(A) Can be expected to result in death;
(B) Has lasted for a continuous period of not less than 60 months; or
(C) Can be expected to last for a continuous period of not less than 60 months; or
(ii) Has been determined by the Secretary of Veterans Affairs to be unemployable due to a service-connected disability.
(3)
(b)
(2) A scholarship recipient who applies for discharge must provide the Director with documentation supporting the request as well as current contact information including home address, email address, and telephone number.
(3) The Director notifies the scholarship recipient on the outcome of the application for discharge.
(a) A scholarship recipient who fails to complete their obligation, as evidenced by documentation of that service with all required information and certifications, must repay to the United States the amount of the scholarship award received. Such repayment amounts must be repaid on terms as determined by the Director.
(b) If not repaid, the CyberCorps SFS scholarship amounts paid to the scholarship recipient, together with any accrued interest and fees, will be converted into a Direct Unsubsidized Loan and subject to repayment to the Secretary of Education, if the scholarship recipient does not submit required documentation to prove the qualified employment within the timeframe required by the agreement to serve or repay.
(c) A CyberCorps SFS scholarship that is converted to a Direct Unsubsidized Loan is not counted against the scholarship recipient's annual or aggregate loan limits under 34 CFR 685.203.
(d) On or about 90 days before the date that a scholarship recipient's CyberCorps SFS scholarship would be converted to a Direct Unsubsidized Loan, the Director notifies the scholarship recipient of the date by which they must submit documentation showing that they are satisfying the obligation.
(e) At least annually during the service obligation period, the Director notifies the scholarship recipient of—
(1) The terms and conditions that the scholarship recipient must meet to satisfy the service obligation;
(2) The requirement for the scholarship recipient to provide to the Director, upon completion of each of the required service year, documentation of that service on a form approved by the Director and emphasizes the necessity to keep copies of this information and copies of the scholarship recipient's own employment documentation; and
(3) The conditions under which the scholarship recipient may request a deferral of the period for completing the service obligation or the discharge of the service obligation.
(f) A scholarship recipient remains obligated to meet all requirements of the service obligation, even if the recipient does not receive the notices from the Director as described in paragraph (e) of this section.
(g) A scholarship recipient whose CyberCorps Scholarship has been converted to a Direct Unsubsidized Loan—
(1) Enters a six-month grace period prior to entering repayment, and
(2) Is eligible for all of the benefits of the Direct Loan Program.
(h) Once converted to a Direct Unsubsidized Loan under this part, the loan may not be converted back to a CyberCorps Scholarship.
If any provision of this part or its application to any person, act, or practice is held invalid, the remainder of the part or the application of its provisions to any person, act, or practice shall not be affected thereby.
Forest Service, Agriculture (USDA).
Notice of Approval of the Revised Land Management Plan for the Cibola National Forest.
Steve Hattenbach, the Forest Supervisor for the Cibola National Forest, Southwestern Region, signed the record of decision (ROD) for the Cibola National Forest Land Management Plan (LMP). The final ROD documents the rationale for approving the LMP and is consistent with the Reviewing Officer's responses to objections and instructions.
The revised LMP for the Cibola National Forest will become effective August 15, 2022 (36 CFR 219.17(a)(1)).
To view the signed ROD, Final Environmental Impact Statement (FEIS), LMP, and other related documents, please visit the Cibola National Forest Plan Revision website at:
Jay Turner, Staff Officer, Cibola National Forest at
Individuals who use telecommunication devices for the hearing-impaired (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 24 hours a day, every day of the year, including holidays. Written requests for information may be sent to Cibola National Forest, Attn: Plan Revision, 2113 Osuna Rd. NE, Albuquerque, NM 87113.
The Cibola National Forest covers four ranger districts and more than 1.6 million acres across 10 counties in central New Mexico. The LMP was developed pursuant to the 2012 Forest Service Planning Rule (36 CFR 219) and will replace the 1985 LMP. The LMP describes desired conditions, objectives, standards, guidelines, and land suitability for project and activity decision-making and will guide all resource management activities on the Forest. The Cibola National Forest plays a unique role supporting and partnering with communities in central New Mexico, as well as throughout the southwestern United States, by providing economic benefits including fuelwood and livestock grazing, and abundant recreational opportunities. The development of the LMP was shaped by the best available scientific information, current laws, and public input.
The Cibola National Forest initiated the plan revision in 2012, engaging with the public frequently and innovatively throughout the planning process. This effort has included conventional public meetings, collaborative work sessions, information sharing via social media, and the development of self-convening collaborative groups. The public, cooperating agencies, district collaboratives, and Tribes contributed well over 3,500 comments throughout the plan revision process from 2012 to 2019. The Cibola National Forest engaged in government-to-government consultation with 17 tribes during the LMP revision, ensuring tribal-related plan direction accurately reflects the Cibola National Forest's trust responsibilities and government-to-government relationship with the tribes.
A draft ROD, LMP, and FEIS were released in September 2021, initiating a 60-day objection filing period that closed November 2, 2021. The Cibola National Forest received six eligible objections. Through a comprehensive review of each objection, the Forest Service identified a variety of issues. Following the objection review, the Reviewing Officer held objection resolution meetings with objectors and interested persons. Based on these meetings, the Reviewing Officer issued a written response on May 24, 2022. The Cibola National Forest addressed instructions from the Reviewing Officer in the ROD, LMP, and FEIS.
The Responsible Official for approving the LMP is Steve Hattenbach, Forest Supervisor, Cibola National Forest. The Responsible Official approving the list of species of conservation concern is Michiko Martin, Regional Forester, Southwestern Region.
National Agricultural Statistics Service, Agriculture (USDA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Annual Organic Survey. USDA's Risk Management Agency (RMA) typically funds an organic production and practices survey in years where the Census of Agriculture Special Study for Organics isn't conducted. The next Special Study is planned for 2025 (enumerated in early 2026), so this request will include only the surveys that are funded by USDA-RMA for crop years 2022 to 2024. A minor revision to burden hours will be needed to account for the anticipated data collection plan for the upcoming surveys along with adding some cognitive interviews to test requested changes to the annual surveys.
Comments on this notice must be received by September 13, 2022 to be assured of consideration.
You may submit comments, identified by docket number 0535-0249,
•
•
•
•
Kevin L. Barnes, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202)720-2707. Copies of this information collection and related instructions can be obtained without charge from Richard Hopper, NASS—OMB Clearance Officer, at (202)720-2206 or at
Originally, the Organic Survey was designed to be conducted once every five years as a mandatory, follow-on-survey to the 2007 Census of Agriculture and then every five years after that. In 2011, the docket was renewed to include that the survey was changed to accommodate a cooperative agreement between NASS and the USDA Risk Management Agency (RMA). Specifically, the survey was changed to a voluntary survey that was to be conducted annually if funding permitted, and it would allow for a rotation of target crops each year. With the completion of the 2012 Census of Agriculture, NASS renewed the Organic Survey again and returned it to its' original scope of questions and the mandatory reporting requirement. After the completion of the 2014 Organic Survey, NASS renewed its' cooperative agreement with RMA to conduct the shorter questionnaire on an annual basis.
The sample will consist of all certified organic operations, operations exempt from organic certification (value of sales < $5,000), and operations with acres transitioning into organic certification from the most recent published Census of Agriculture as well as organic operations currently on the NASS list frame. The survey will be conducted in all States. Some operation level data will be collected to use in classifying each operation for summary purposes. The majority of the questions will involve production data (acres planted, acres harvested, quantity harvested, quantity sold, livestock produced and sold, value of sale, etc.), and marketing and production practices.
Depending on annual funding, approximately 26,000 operations will be contacted by mail in early January, with a second mailing later in the month to non-respondents. Respondents will be able to complete the questionnaire by use of the internet, if they so choose. Telephone and personal enumeration will be used for remaining non-response follow-up. If the survey is funded, the National Agricultural Statistics Service will publish summaries in December at both the State level and for each major organic commodity when possible. Due to confidentiality rules, some State level data may be combined and published at the regional or national level to prevent disclosure of individual operation's data.
This collection of data will support requirements within the Agricultural Act of 2014. Under Section 11023 some of the duties of the Federal Crop Insurance Corporation (FCIC) are defined as “(i) IN GENERAL—As soon as possible, but not later than the 2015 reinsurance year, the Corporation shall offer producers of organic crops price elections for all organic crops produced in compliance with standards issued by the Department of Agriculture under the national organic program established under the Organic Foods Production Act of 1990 (7 U.S.C. 6501
All NASS employees and NASS contractors must also fully comply with all provisions of the Confidential Information Protection and Statistical Efficiency Act (CIPSEA) of 2018, Title III of Public Law 115-435, codified in 44 U.S.C. Ch. 35. CIPSEA supports NASS's pledge of confidentiality to all respondents and facilitates the agency's efforts to reduce burden by supporting statistical activities of collaborative agencies through designation of NASS agents, subject to the limitations and penalties described in CIPSEA.
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
United States Commission on Civil Rights.
Notice of Commission public business meeting.
Friday, July 22, 2022, 12:00 p.m. EST.
Meeting to take place virtually and is open to the public via livestream on the Commission's YouTube page:
Angelia Rorison: 202-376-8371;
In accordance with the Government in Sunshine Act (5 U.S.C. 552b), the Commission on Civil Rights is holding a meeting to discuss the Commission's business for the month. This business meeting is open to the public. Computer assisted real-time transcription (CART) will be provided. The web link to access CART (in English) on Friday, July 22, 2022, is
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
Fiscal data provided by respondents aid data users in measuring the effectiveness of resource allocation. The products of this data collection make it possible for data users to search a single database to obtain information on such things as per pupil expenditures and the percent of state, local, and federal funding for each school system. Elementary-secondary education related spending is the single largest financial activity of state and local governments. Education finance statistics provided by the Census Bureau allow for analyses of how public elementary-secondary school systems receive their funding and how they are spending their funds.
The Annual Survey of School System Finances was revised for the fiscal year (FY) 2020 collection to include 12 new data items in response to the COVID-19 pandemic. Six revenue data items and six expenditure items were added to the survey to collect financial information from school systems concerning the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020. The survey was then revised again for the FY 2021 collection in response to new legislation passed due to the COVID-19 pandemic, including the Coronavirus Response and Relief Supplemental Appropriations Act (CRRSA) and the American Rescue Plan (ARP). Four new revenue items were added to the survey to collect financial data based on these two new legislative acts and two obsolete revenue items added in FY 2020 in response to the COVID-19 pandemic were removed from the survey. Two new expenditure items were also added to expand the scope of financial data collected concerning COVID-19 federal assistance funds.
This proposed revision to the Annual Survey of School System Finances is to further expand the collection of expenditure data for COVID-19 federal assistance funds. The CARES Act of 2020 established several relief funds that would be made available to school systems, including the Elementary and Secondary School Emergency Relief (ESSER) Fund, the Governor's Emergency Education Relief (GEER) Fund, and the Coronavirus Relief Fund (CRF). Subsequent legislation such as the CRRSA and the ARP further funded these sources and established additional funds made available to school systems, including the ARP Act Coronavirus State and Local Fiscal Recovery Funds. In response to these various funds being established and utilized by school systems, 21 new data items will be added to the survey to collect data on expenditures from these funding sources. Three data items collecting data for current expenditures, instructional expenditures, and capital outlay expenditures will be added for seven
As a result of these 21 new data items being added to the survey, an increase in the total burden hours and estimated time per response for the primary survey form (F-33) is expected compared to prior survey collections. A slight decrease in the number of supplemental respondents is also expected in future collections due to school system consolidations, mergers, and other factors affecting the composition of school systems in states where supplemental debt and asset data is collected. This will partially offset some of the increase in total burden hours as a result of the 21 new items collected on the survey; however, an overall increase in total burden hours is still expected.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that The Navigator Company, S.A. (Navigator) made sales of certain uncoated paper (uncoated paper) from Portugal in the United States at less than normal value during the period of review (POR) March 1, 2020, through February 28, 2021.
Applicable July 15, 2022.
Eric Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington DC 20230; telephone: (202) 482-1988.
On April 4, 2022, Commerce published the
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by this order are certain uncoated paper from Portugal. For a full description of the scope,
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues that parties raised and to which we responded in the Issues and Decision Memorandum is attached to this notice as an appendix. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments received from interested parties, we have made no changes to
Commerce determines that the following weighted-average dumping margin exists for the period March 1, 2020, through February 28, 2021:
Commerce intends to disclose to interested parties the calculations performed in connection with the final results within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of final determination in the
Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b)(1), Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
Because Navigator's weighted-average dumping margin is not zero or
For entries of subject merchandise during the POR produced by Navigator for which it did not know its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash 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 Navigator will be the rate established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 7.80 percent, the all-others rate established in the LTFV investigation.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5) and 19 CFR 351.213(h)(1).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council's is convening its Scientific and Statistical Committee (SSC) via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Thursday, August 4, 2022, beginning at 9 a.m. Webinar registration information:
Call in information: +1 (631) 992-3221, Access Code: 484-371-473.
Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scientific and Statistical Committee will meet to provide feedback to the Council's Groundfish Plan Development Team (PDT) on possible rebuilding approaches for Gulf of Maine cod and on the basis for the range of alternative rebuilding strategies under development. They will receive an update on the development of Acceptable Biological Catch control rule alternatives under consideration for the Northeast Multispecies Fishery Management Plan. They will review information provided by the Council's Herring PDT and the results of recent Atlantic herring management track stock assessment. Using the Council's ABC control rule and rebuilding plan, recommend the OFLs and the ABCs for Atlantic herring for fishing years 2023, 2024, and 2025. Also on the agenda, their plans to recommend an approach for setting the discard deduction from the annual catch target during specifications setting for the monkfish fishery, considering information provided by the Monkfish Plan Development Team. They will consider other business as necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application modification from Blue Planet Strategies contains all of the required information and warrants further consideration. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act and the Atlantic Coastal Fisheries Cooperative Management Act require publication of this notice to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.
Comments must be received on or before August 1, 2022.
You may submit written comments by the following method:
•
Allison Murphy, Fishery Policy Analyst, 978-281-9122,
Blue Planet Strategies was issued an exempted fishing permit (EFP) request on September 7, 2021. The purpose of this project is to test technologies for sub-surface gear marking and gear tracking technologies and prototypes for acoustic release of bottom stowed lift bags or vertical lines for retrieving fishing gear used in the New England groundfish, monkfish, and American lobster and Jonah crab fisheries for the purpose of reducing buoy line interactions with marine mammals. For 2022, this EFP authorized up to 12 participating vessels in 2022 to test ropeless systems in the Gulf of Maine Regulated Mesh Area (gillnet) and Lobster Management Areas 1 and 3 (lobster trap/pot). Blue Planet Strategies was granted exemptions from the following requirements:
1. Gear marking requirements at 50 CFR 697.21(b)(2) to allow for the use of a single buoy marker on a trawl of more than three traps; and
2. Gear marking requirements at § 648.84(b) to allow for the use of a single buoy marker on a gillnet.
One end of both the gillnet and lobster trap gear is required to be marked according to regulations, the other end will test a lift bag system or a stowed rope system, or a spooled rope system. Both gillnet and lobster gear will test either acoustic or modem gear marking technology. A maximum of 140 gillnet deployments were expected in 2022, with a soak time of 96 hours. A maximum of 800 lobster trap deployments were expected in 2022, with a maximum soak time of 4-8 days. Sampling is expected to largely occur from June through October in both 2021 and 2022, though the permit is approved through December 2022.
Blue Planet Strategies submitted a request to revise the EFP on June 21, 2022. Investigators wish to add one additional vessel that operates out of Chatham, Massachusetts and fishes in the Georges Bank Regulated Mesh Area (statistical area 521) and Southern New England Regulated Mesh Area (statistical area 538). Therefore, investigators have requested a geographic expansion of the gillnet effort. No additional gear deployments are expected.
Investigators also request to modify the exemption from gear marking requirements at 50 CFR 697.21(b)(2) to allow for the use of no surface markings within a discrete portion of Area 1. Investigators wish to test the feasibility of using fully on-demand gear within the shipping channel known as the “Southern Channel” or “Southern Route” in Frenchman Bay (Downeast Maine). This new work is expected to account for approximately 100 of the 800 deployments approved in 2022 (
If approved, Blue Planet Strategies may request minor modifications and extensions to the EFP throughout the study. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a joint public meeting.
The South Atlantic Fishery Management Council's (SAFMC) and Gulf of Mexico Fishery Management Council's (GMFMC) will hold a joint meeting of their Scientific and Statistical Committees (SSC) via webinar.
The joint SSC meeting will take place Thursday, August 4, 2022, from 9 a.m. to 5 p.m., EDT.
The meeting will be held via webinar.
Kim Iverson, Public Information Officer, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The meeting is open to the public via webinar as it occurs. Webinar registration is required. Information regarding webinar registration will be posted to the SAFMC's website at:
The following agenda items will be addressed by the SSCs during the meeting:
1. Review, discuss, and provide feedback on the southeastern yellowtail snapper interim analysis projections and uncertainties. Provide fishing level recommendations using the previously reviewed Southeast Data, Assessment, and Review (SEDAR) 64 assessment and recent interim analysis for southeastern yellowtail snapper. (Joint South Atlantic and Gulf of Mexico SSCs)
2. Review, discuss, and provide feedback on the operational assessment for South Atlantic Spanish mackerel projections and uncertainties, and provide fishing level recommendations. (South Atlantic SSC only)
The SSCs will provide guidance to staff and recommendations for Council consideration as appropriate.
Multiple opportunities for comment on agenda items will be provided during SSC meeting. Open comment periods will be provided at the start of the meeting and near the conclusion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. Additional opportunities for comment on specific agenda items will be provided, as each item is discussed, between initial presentations and SSC discussion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. All comments are part of the record of the meeting.
Although non-emergency issues not contained in the meeting agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Issuance of 51 scientific research permits.
Notice is hereby given that NMFS has issued 51 scientific research permits under the Endangered Species Act (ESA) to the individuals and organizations listed in Table 1. The research is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and to help guide management and conservation efforts.
The permits and related documents are available for review upon written request via email to
Rob Clapp, Portland, OR (ph.: 503-231-2314), Fax: 503-230-5441, email:
Notice was published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes service(s) from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
Michael R. Jurkowski, Telephone: (703) 785-6404, or email
On 4/29/2022, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List. This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product(s) and service(s) and impact of the additions on the current or most recent contractors, the Committee has determined that the product(s) and service(s) listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product(s) and service(s) to the Government.
2. The action will result in authorizing small entities to furnish the product(s) and service(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) and service(s) proposed for addition to the Procurement List.
Accordingly, the following service(s) are added to the Procurement List:
The Committee finds good cause to dispense with the 30-day delay in the effective date normally required by the Administrative Procedure Act. See 5 U.S.C. 553(d). This addition to the Committee's Procurement List is effectuated because of the expiration of the Office of Personnel Management (OPM), Custodial, Recycling & Snow Removal Services, Theodore Roosevelt Building, Washington DC contract. The Federal customer contacted and has worked diligently with the AbilityOne Program to fulfill this service need under the AbilityOne Program. To avoid performance disruption, and the possibility that the OPM will refer its business elsewhere, this addition must be effective on July 31, 2022, ensuring timely execution for an August 1, 2022, start date while still allowing 16 days for comment. Pursuant to its own regulation 41 CFR 51-2.4, the Committee has been determined that no severe adverse impact exists on the incumbent contractor. The Committee also published a notice of proposed Procurement List addition in the
On 4/1/2022 and 4/8/2022, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List. This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3.
After consideration of the relevant matter presented, the Committee has determined that the product(s) and service(s) listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the product(s) and service(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) and service(s) deleted from the Procurement List.
Accordingly, the following service(s) are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions the Procurement List.
The Committee is proposing to add service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: August 14, 2022.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 785-6404, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the service(s) listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following service(s) are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
Department of the Army, Department of Defense (DoD).
Notice of Intent (NOI).
Pursuant to the National Environmental Policy Act of 1969 (NEPA), as implemented by Council on Environmental Quality regulations, the Department of the Army announces its intent to prepare an environmental impact statement (EIS) to analyze a real estate transaction and a related utilities infrastructure upgrade. The real estate transaction would alter, where necessary, an existing transmission line easement at West Point, NY, and would grant to Orange and Rockland Utilities (O&R) a new 150-foot-wide transmission line easement at West Point. These measures would allow O&R to upgrade its existing 34.5-kilovolt (kV) electrical transmission line and associated infrastructure between its Woodbury Transition Station (in the Town of Woodbury, NY), West Point, NY, and the neighboring Village of Highland Falls, NY. The EIS will evaluate the environmental impact of the Proposed Action, to include its impact on adjacent properties.
Comments must be received by August 29, 2022.
Please send any written comments or questions to Mr. Christopher Pray via email (
Mr. Christopher Pray at the above addresses or at phone number (845) 938-7122.
The purpose of the Proposed Action is to allow O&R to expand transmission capacity and ensure system redundancy. The Proposed Action is needed because West Point's electric demand is nearing total system capacity. There is no backup in case of emergency and/or planned outages. The current 34.5kV system consists of two 19-megawatt (MW) circuits (38MW total). No reserve capacity exists in either circuit, resulting in a lack of redundant capabilities for a significant number of hours each year. Because the neighboring communities of Highland Falls and Fort Montgomery both receive their electricity from the same 34.5kV system that supplies West Point, these municipalities would also benefit from having a fully redundant electrical system. The Proposed Action would increase overall energy resiliency. Implementing the Proposed Action would allow U.S. Army Garrison—West Point (USAG—West Point) to continue to improve and modernize the educational facilities and infrastructure of the U.S. Military Academy as part of USAG—West Point's larger master planning efforts.
The Proposed Action includes the following steps:
• USAG—West Point would enter into a real estate transaction with O&R to alter, where necessary, the alignment of the existing transmission line easement along approximately eight miles of West Point property and grant a new, approximately one-mile-long, 150-foot-wide easement on West Point property to connect the upgraded transmission line to a new Wilson Gate Collocated Substation at West Point.
• O&R would construct two temporary, overhead (OH), 34.5kV transmission lines where necessary to maintain service. O&R would use existing transmission lines to the greatest extent possible.
• O&R would install a mobile substation at the O&R Dean Substation on Mine Torne Road at West Point.
• O&R would decommission the existing 34.5kV transmission line to West Point, Highland Falls, and Fort Montgomery.
• O&R would construct an upgraded 138kV transmission line, an upgraded O&R Dean Substation, a new three-way switching station along the transmission line easement outside the O&R Dean Substation, an upgraded O&R Harriman Substation (in the Town of Woodbury, NY), and an upgraded USAG—West Point Delafield Substation. USAG—West Point and O&R would then construct a new, co-owned, Wilson Gate Collocated Substation at West Point.
• O&R would decommission the temporary, OH, 34.5kV transmission line, the O&R Highland Falls Substation, and the existing USAG—West Point Wilson Gate Substation.
The transmission line upgrade would require additional real estate transactions between O&R and the State
The new Wilson Gate Collocated Substation would be built near the existing USAG—West Point Wilson Gate Substation. The new Wilson Gate Collocated Substation would be divided into two sections, one serving West Point and the other serving the surrounding communities. Upon completion of the project, the existing USAG—West Point Wilson Gate Substation would be decommissioned but maintained for switching purposes.
The EIS will analyze at least two transmission line route alternatives and a No-Action Alternative. The route alternatives would alter the alignment of the existing easement where necessary. The Northern Route to Wilson Gate Collocated Substation Alternative would grant an additional easement to O&R from the vicinity of the USAG—West Point Delafield Substation to the new Wilson Gate Collocated Substation. The Southern Route to Wilson Gate Collocated Substation Alternative would grant an additional easement to O&R from where the transmission line would split north of the intersection of Stony Lonesome Road and Route 9W, to the new Wilson Gate Collocated Substation.
The Proposed Action is expected to impact multiple resources, including wildlife, vegetation, threatened and endangered species, water resources (including state and federally regulated wetlands, surface waters, and floodplains), land use (including the Hudson River Coastal Zone), cultural resources, state park lands, the Hudson River view shed, topography, and soils. Construction activities would create noise and would impact air quality and traffic. Because of the size of the affected area, the project could have significant environmental impacts. The particular resources that would experience significant impacts are unknown at this time.
Consultation with federal and state agencies is required and will include:
• Section 7 consultation under the Endangered Species Act;
• New York State endangered species review;
• Section 106 consultation under the National Historic Preservation Act; and
• preparation of a coastal zone consistency determination.
O&R will need to obtain a number of federal, state, and local permits and approvals, including an Article VII Certificate of Environmental Compatibility and Public Need from the New York State Public Service Commission.
USAG—West Point developed a tentative schedule for the EIS. Two public meetings will occur approximately 20 days after
Native American Tribes, government agencies, organizations, and individuals are invited to participate in the scoping process for this EIS by attending public meetings and/or by submitting written comments. USAG—West Point requests potential alternatives, information, and analyses relevant to the Proposed Action.
Due to the COVID-19 pandemic and the need to maintain social distancing, all public meeting materials will be provided online and all public meetings will convene by phone. Public meeting materials can be accessed at:
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a new information collection.
Interested persons are invited to submit comments on or before September 13, 2022.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Sophia Hart, 202-453-6642.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested
Specifically, the Department is seeking to learn about the distribution of ARP-HCY funds by SEAs, the characteristics of LEAs receiving funds, and the characteristics of LEAs who chose not to participate in the distribution of funds in each state. Additionally, the Department would like to gather information on how SEAs are using the funds that were set aside at the State level under this program. Information obtained in this survey will be used to inform technical assistance and support provided by the Department and the National Center for Homeless Education (NCHE), resources developed by NCHE, and further studies.
Office of Science, Department of Energy.
Notice of partially-closed virtual meeting.
This notice announces a partially-closed meeting of the President's Council of Advisors on Science and Technology (PCAST). Due to the COVID-19 pandemic, this meeting will be held virtually for members of the public and in-person for PCAST members. The Federal Advisory Committee Act (FACA) requires that public notice of these meetings be announced in the
Thursday, July 28, 2022; 2:30 p.m. to 4 p.m. ET.
Information to participate virtually can be found on the PCAST website closer to the meeting at:
Dr. Sarah Domnitz, Designated Federal Officer, PCAST, email:
PCAST is an advisory group of the nation's leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from the White House, cabinet departments, and other Federal agencies. PCAST is consulted on and provides analyses and recommendations concerning a wide range of issues where understanding of science, technology, and innovation may bear on the policy choices before the President. The Designated Federal Officer is Dr. Sarah Domnitz. Information about PCAST can be found at:
It is the policy of the PCAST to accept written public comments no longer than 10 pages and to accommodate oral public comments whenever possible. The PCAST expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
The public comment period for this meeting will take place on July 28, 2022, at a time specified in the meeting agenda. This public comment period is designed only for substantive commentary on PCAST's work, not for business marketing purposes.
Because PCAST operates under the provisions of FACA, all public comments and/or presentations will be treated as public documents and will be made available for public inspection, including being posted on the PCAST
Federal Energy Regulatory Commission.
Notice of information collections and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-914 (Cogeneration and Small Power Production—Tariff Filings), which will be submitted to the Office of Management and Budget (OMB) for review.
Comments on collections of information are due August 15, 2022.
Send written comments on FERC-914 (IC22-13-000) to OMB through
Please submit copies of your comments (identified by Docket No. IC22-13-000) to the Commission as noted below. Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery.
○
○
Ellen Brown may be reached by email at
In Order Nos. 671 and 671-A,
FERC implemented the Congressional mandate of the Energy Policy Act of 2005 (EPAct 2005) to establish criteria for new qualifying cogeneration facilities by: (1) amending the exemptions available to qualifying facilities from the FPA and from Public Utility Holding Company Act (PUHCA) [resulting in the burden imposed by FERC-914, the subject of this notice]; (2) ensuring that these facilities are using their thermal output in a productive and beneficial manner; that the electrical, thermal, chemical and mechanical output of new qualifying cogeneration facilities is used fundamentally for commercial, residential or industrial purposes; and there is continuing progress in the development of efficient electric energy generating technology; (3) amending the FERC Form No. 556
Take notice that the Federal Energy Regulatory Commission (Commission) staff, will convene, in the above-referenced proceeding, a virtual workshop on August 30, 2022, from 2:00 p.m. to 3:00 p.m. Eastern time, to discuss how members of the public including consumers and consumer advocates can file comments on the record using FERC's eFiling and eComment online applications. The workshop will be held remotely.
The workshop will include video demonstrations of steps involved in filing a comment, followed by a presentation of useful tips for using the Commission's online applications and a question-and-answer portion of the workshop. The workshop will provide information on the commenting process to facilitate increased public participation in Commission processes and decision-making.
The workshop will be open for the public to attend, and there is no fee for attendance. Further details on the agenda, can be found on the FERC's Office of Public Participation website. Information on this technical workshop will also be posted on the Calendar of Events on the Commission's website,
The workshop will be accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about the workshop, please contact Yewande Bayly of the Commission's Office of Public Participation at 202-502-6595 or send an email to
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document, that will discuss the environmental impacts of the Trailblazer Conversion Project (Project) involving abandonment in-place, construction, and operation of facilities by Trailblazer Pipeline Company, LLC (TPC) and Rockies Express Pipeline, LLC (REX) in Weld, Logan, and Sedgwick Counties, Colorado; and Kimball, Franklin, Webster, Jefferson, Perkins, Lincoln, Kearney, Fillmore, Adams, and Saline Counties, Nebraska. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the project. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity to construct and an authorization to abandon gas
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on August 10, 2022. Comments may be submitted in written form. Further details on how to submit comments are provided in the Public Participation section of this notice.
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
If you submitted comments on this project to the Commission before the opening of this docket on May 27, 2022 you will need to file those comments in Docket No. CP22-468-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if the project is approved by the Commission and you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
TPC and REX provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature, which is located on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP22-468-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
TPC is proposing to abandon certain natural gas pipeline facilities and associated compressor stations. REX is proposing to provide capacity on the existing REX Pipeline to TPC and construct, install, own, operate, and maintain certain facilities necessary for TPC to continue service to its existing customers. According to TPC and REX, the purpose of the Project is to provide continuing service to TPC's existing natural gas firm transportation customers using underutilized jurisdictional capacity on REX pipeline facilities while making TPC's pipeline facilities available in anticipation of future non-jurisdictional use to transport carbon dioxide (CO
The Trailblazer Conversion Project would consist of the following:
• abandonment in-place of 392 miles of 36-inch-diameter TPC pipeline facilities;
• abandonment in-place of three TPC mainline compressor stations;
• construction of a new 18.8-mile-long, 20-inch-diameter lateral pipeline (REX Lateral to TPC Adams);
• construction of a new 22.2-mile-long, 36-inch-diameter lateral (REX Lateral to TPC East);
• installation of station piping and additional regulation at three existing TPC meter stations to enable deliveries into end users or interstate pipeline systems;
• expansion of one existing meter station between the REX Pipeline and the TPC Pipeline;
• construction of two new REX meter stations; and
• construction of five new interconnect booster stations at existing TPC pipeline facilities (footprint of booster stations ranging from 1.2 to 2.1 acres in size and total horsepower ranging from 50 to 3,533).
The general location of the project facilities is shown in appendix 1.
The Project would affect approximately 685.2 acres during construction and abandonment activities. About 264.6 acres would be needed for operation of the Project. The remaining acreage would be restored following construction. Of the 41 miles of proposed new pipeline laterals, about 76 percent (31.3 miles) would be co-located with other existing pipeline rights-of-way.
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the construction and operation of the proposed project under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• socioeconomics;
• environmental justice;
• air quality and noise;
• cumulative impacts; and
• reliability and safety.
Commission staff have already identified one issue that deserves attention based on a preliminary review of the proposed facilities and the environmental information provided by TPC and REX as well as public comments. We have so far received comments regarding the safety of the non-jurisdictional transport of CO
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Following this scoping period, Commission staff will determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
OR
(2) Return the attached “Mailing List Update Form” (appendix X).
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following PURPA 210(m)(3) filings:
The filings are accessible in the Commission's eLibrary system (
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l. Deadline for filing additional study requests and requests for cooperating agency status: August 29, 2022.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. The application is not ready for environmental analysis at this time.
n.
The project is operated in a run-of-river mode and generates an estimated average of 40,669 megawatt-hours per year.
o. In addition to publishing the full text of this notice in the
You may also register online at
p.
Issue Deficiency Letter (if necessary): August 2022.
Request Additional Information (if needed): August 2022.
Issue Acceptance Letter and Notice: November 2022.
Issue Scoping Document 1 for comments: December 2022.
Issue Scoping Document 2: February 2023.
Issue Notice of Ready for Environmental Analysis: February 2023.
q. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that on July 7, 2022, Trans-Foreland Pipeline Company LLC (Trans-Foreland) requested that the Federal Energy Regulatory Commission (Commission) grant an extension of time, until December 17, 2025, to construct, modify, and operate new facilities for the import of liquefied natural gas (LNG) at its existing Kenai LNG terminal in Nikiski, Alaska (Kenai LNG Cool Down Project or Project) and make the Project available for service as authorized in the December 17, 2020 Order Granting Authorization Under Section 3 of the Natural Gas Act (Order).
Trans-Foreland does not anticipate being able to place the Project into service by December 17, 2022, as stated in Ordering Paragraph (B) of the Order, despite good faith efforts to do so. Trans-Foreland states that the onset and duration of the COVID-19 pandemic and the war in Ukraine have generated adverse economic and logistical conditions that slowed commercial progress and precluded Trans-Foreland from making its final investment decision (FID) for the Project. Trans-Foreland asserts that uncertainty and volatility in the global LNG market have made it difficult for Trans-Foreland to secure a suitable supply arrangement that would provide the financial certainty necessary for the Project. Trans-Foreland requires this financial certainty in order to make its FID and move forward with the Project.
Trans-Foreland requests a three-year extension of time so that it may construct, modify, and place the Project in service by December 17, 2025. Trans-Foreland states that the Project remains commercially viable, and all permits and authorization received are in good standing.
This notice establishes a 15-calendar day intervention and comment period deadline. Any person wishing to comment on the Trans-Foreland's request for an extension of time may do so. No reply comments or answers will be considered. If you wish to obtain legal status by becoming a party to the proceedings for this request, you should, on or before the comment date
As a matter of practice, the Commission itself generally acts on requests for extensions of time to complete construction for NGA facilities when such requests are contested before order issuance. For those extension requests that are contested,
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
Take notice that on June 30, 2022, MIGC LLC (MIGC), 9950 Woodloch Forest Drive, Suite 2800, The Woodlands, Texas, 77380, filed in the above referenced docket, a prior notice request to abandon its Python Compressor Unit in Converse County, Wyoming under authorities granted by its blanket certificate issued in Docket No. CP82-409-000, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
The Python Compressor Station consists of one 2,370 horsepower compressor unit and appurtenant facilities, a compressor building, atmospheric storage tank, sales and fuel-metering skid, associated pipeline and pigging facilities, and required electrical systems and controls (Python Compressor Unit). The project will result in a reduction of mainline capacity on MIGC's system of 50,000 thousand cubic feet per day (Mcf/d). Upon disconnection of the Python Compressor Unit, MIGC's mainline capacity will be reduced from 175,000 Mcf/d to 125,000 Mcf/d.
In addition to publishing the full text of this document in the
Any questions regarding this prior notice request should be directed to Jeffrey M. Molinaro, Regulatory Advisor, MIGC LLC, 9950 Woodloch Forest Dr., The Woodlands, Texas 77380, at (346) 786-5009, or by email
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 September 9, 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 September 9, 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 CP22-480-000 in your submission.
(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 (
(2) You can file a paper copy of your submission by mailing it to the address below.
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail at: Jeffrey M. Molinaro, Regulatory Advisor, MIGC LLC, 9950 Woodloch Forest Dr., The Woodlands, Texas 77380, or by email
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Environmental Protection Agency (EPA).
Notice of data availability.
The Environmental Protection Agency (EPA) is providing notice of the availability of data on the administration of the assurance provisions of the Cross-State Air Pollution Rule (CSAPR) trading programs for the control periods in 2021. Total emissions of nitrogen oxides (NO
Objections to the information referenced in this notice must be received on or before August 15, 2022.
Submit your objections via email to
Questions concerning this action should be addressed to Garrett Powers at (202) 564-2300 or
The regulations for each CSAPR trading program contain “assurance provisions” designed to ensure that the emissions reductions required from each state covered by the program occur within the state. If the total emissions from a given state's affected units exceed the state's assurance level under the program, then two allowances must be surrendered for each ton of emissions exceeding the assurance level (in addition to the ordinary obligation to surrender one allowance for each ton of emissions). In the quarterly emissions reports covering the 2021 control period, Missouri units participating in the CSAPR NO
When a state's assurance level is exceeded, responsibility for surrendering the required additional allowances is apportioned among groups of units in the state represented by “common designated representatives” based on the extent to which each such group's emissions exceeded the group's share of the state's assurance level. For the CSAPR NO
In this document, EPA is providing notice of the data relied on to determine the amounts of the exceedance of the Missouri assurance level discussed above and notice of the preliminary calculations of the amounts of additional allowances that the owners and operators of certain Missouri units must surrender as a result of the exceedance, as required under 40 CFR 97.825(b)(1)(ii). By October 1, 2022, EPA will provide notice of the final calculations of the amounts of additional allowances that must be surrendered, incorporating any adjustments made in response to objections received, as required under 40 CFR 97.825(b)(2)(ii). Each set of owners and operators identified pursuant to the notice of the final calculations must hold the required additional allowances in an assurance account by November 1, 2022.
The data and preliminary calculations are set forth in an Excel spreadsheet entitled “2021_CSAPR_assurance_provision_calculations_prelim.xlsx” available at
Any objections should be strictly limited to whether EPA has identified the data and performed the calculations in the spreadsheet correctly in accordance with the regulations. Objections must include (1) precise identification of the specific data or calculations the commenter believes are inaccurate, (2) new proposed data or calculations upon which the commenter believes EPA should rely instead, and (3) the reasons why EPA should rely on the commenter's proposed data or calculations and not the data and calculations referenced in this notice.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Standardized Permit for RCRA Hazardous Waste Management Facilities (EPA ICR No. 1935.07, OMB Control No. 2050-0182) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before September 13, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0691, at
Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at
Jeff Gaines, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0332;
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Requirements and Exemptions for Specific RCRA Wastes (Renewal) (EPA ICR No. 1597.14, OMB Control No. 2050-0145) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before September 13, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0392, at
Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0453;
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and 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,
In 2001, EPA promulgated regulations in 40 CFR part 266 that provide increased flexibility to facilities managing wastes commonly known as “Mixed Waste.” Mixed Wastes are low-level mixed waste (LLMW) and naturally occurring and/or accelerator-produced radioactive material (NARM) containing hazardous waste. These wastes are also regulated by the Atomic Energy Act. As long as specified eligibility criteria and conditions are met, LLMW and NARM are exempt from the definition of hazardous waste as defined in Part 261. Although these wastes are exempt from RCRA manifest, transportation, and disposal requirements, facilities must still comply with the manifest, transportation, and disposal requirements under the NRC (or NRC-Agreement State) regulations. Section 266.345(a) requires that generators or treaters notify EPA or the Authorized State that they are claiming the Transportation and Disposal Conditional Exemption prior to the initial shipment of a waste to a LLRW disposal facility. This exemption notice provides a tool for RCRA program regulatory agencies to become aware of the generator's exemption claims. The information contained in the notification package provides the RCRA program regulatory agencies with a general understanding of the claimant. This information also allows the agencies to document the generator's exemption status and to plan inspections and review exemption-related records.
And finally, in 1992, EPA finalized management standards for used oils destined for recycling. The Agency
Federal Accounting Standards Advisory Board.
Notice.
Notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) will hold a meeting on August 25, 2022. The purpose of the meeting is to discuss the draft management's discussion and analysis exposure draft. The meeting will begin at 9:30 a.m. and conclude at 12:30 p.m. The meeting will be virtual.
The agenda, briefing materials, and teleconference information for the virtual meeting will be available at
Ms. Monica R. Valentine, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Board of Governors of the Federal Reserve System.
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, notice is given that the Board of Governors of the Federal Reserve System (Board) proposes to modify an existing system of records entitled, BGFRS-12 “FRB—Bank Officers Personnel System” which the Board proposes to rename as BGFRS-12 “FRB—Bank Employees Personnel System.” BGFRS-12 is a system of records that contains personal and organizational information about Federal Reserve Bank officers, which the Board is modifying to include all Reserve Bank employees. It is used by the Human Resources Section within the Board's Division of Reserve Bank Operations and Payment Systems (RBOPS) to assist the Board in its oversight of the Federal Reserve Banks including reviewing Reserve Bank compliance with the Federal Reserve Administrative Manual through reviews and monitoring.
Comments must be received on or before August 15, 2022. This modified system of records will become effective August 15, 2022, without further notice, unless comments dictate otherwise.
The Office of Management and Budget (OMB), which has oversight responsibility under the Privacy Act, requires a 30-day period prior to publication in the
You may submit comments, identified by
•
•
•
•
All public comments will be made available on the Board's website at
David B. Husband, Senior Counsel, (202) 530-6270, or
The Division of Reserve Bank Operations and Payments Systems Human Resources section (RBOPS HR) at the Board of Governors has an ongoing need for access to Reserve Bank official staff and employee information to effectively carry out its oversight responsibilities on behalf of the Board and its Committee on Federal Reserve Bank Affairs. This access supports various oversight activities including System-wide analysis for members of the Board of Governors or leadership of the Board, the assessment of various Reserve Bank
The Board is modifying this system to reflect changes in the operation of the system. Previously, BGFRS 12 was limited solely to Reserve Bank officers, but due to a change to the needs of RBOPS HR, will now include personnel information of all Federal Reserve Bank employees (officers, non-officers, and interns) in the system of records. Accordingly, the Board is making changes to the system name, categories of individuals covered by the system, adding more details to the types of information collected, and changing the title for the System Manager.
BGFRS-12 “FRB—Bank Employees Personnel System.”
Unclassified.
Federal Reserve Bank of Kansas City, 1 Memorial Drive, Kansas City, Missouri 64198.
Doreen Chappell, Manager, Human Resources Section, Reserve Bank Operations and Payment Systems, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551, 202-721-4529, or
Sections 4, 10, 11, and 21 of the Federal Reserve Act (12 U.S.C. 247, 248, 307, and 485).
These records are collected and maintained to assist the Board in its oversight of the Federal Reserve Banks. The Board's use includes ensuring compliance with the Federal Reserve Administrative Manual through reviews and monitoring.
All current and former Federal Reserve Bank employees, including interns, but not including contractors.
Past and present Federal Reserve Bank employee information would be limited to data elements directly associated with the Board's oversight role, such as demographic and employment information and compensation-related transactions that have occurred during the employee's employment.
The individual to whom the record pertains, Federal Reserve Bank staff, and Federal Reserve System personnel systems all provide the information contained within this system of records.
General routine uses, A, B, C, D, F, G, H, I, and J apply to this system. These general routine uses are located at
Paper records in this system are stored in locked file cabinets with access limited to staff with a need to know. Electronic records are stored on a secure server with access limited to staff with a need to know.
Staff can retrieve records by name or employee identification number.
Records are retained for at least three years in accordance with applicable record retention schedules.
Access to records is limited to those whose official duties require it.
The Privacy Act allows individuals the right to access records maintained about them in a Board system of records. Your request for access must: (1) contain a statement that the request is made pursuant to the Privacy Act of 1974; (2) provide either the name of the Board system of records expected to contain the record requested or a concise description of the system of records; (3) provide the information necessary to verify your identity; and (4) provide any other information that may assist in the rapid identification of the record you seek.
The Board handles all Privacy Act requests as both a Privacy Act request and as a Freedom of Information Act request. The Board does not charge fees to a requestor seeking to access or amend his/her Privacy Act records.
You may submit your Privacy Act request to the—Secretary of the Board, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551
You may also submit your Privacy Act request electronically by filling out the required information at:
The Privacy Act allows individuals to seek amendment of information that is erroneous, irrelevant, untimely, or incomplete and is maintained in a system of records that pertains to them. To request an amendment to your record, you should clearly mark the request as a “Privacy Act Amendment Request.” You have the burden of proof for demonstrating the appropriateness of the requested amendment and you must provide relevant and convincing evidence in support of your request.
Your request for amendment must: (1) provide the name of the specific Board system of records containing the record you seek to amend; (2) identify the specific portion of the record you seek to amend; (3) describe the nature of and reasons for each requested amendment; (4) explain why you believe the record is not accurate, relevant, timely, or complete; and (5) unless you have already done so in a related Privacy Act request for access or amendment, provide the necessary information to verify your identity.
Same as “Access procedures” above. You may also follow this procedure in order to request an accounting of previous disclosures of records pertaining to you as provided for by 5 U.S.C. 552a(c).
No exemptions are claimed for this system.
This system was previously published in the
Board of Governors of the Federal Reserve System.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice.
The Agency for Healthcare Research and Quality (AHRQ) announces a Special Emphasis Panel (SEP) meeting on “Consumer Assessment of Healthcare Providers and Systems (CAHPS) VI (U18)”. This SEP meeting will be closed to the public.
July 22, 2022.
Agency for Healthcare Research and Quality, (Video Assisted Review), 5600 Fishers Lane, Rockville, Maryland 20857.
Jenny Griffith, Committee Management Officer, Office of Extramural Research, Education and Priority Populations, Agency for Healthcare Research and Quality, (AHRQ), 5600 Fishers Lane, Rockville, Maryland 20857, Telephone: (301) 427-1557.
A Special Emphasis Panel is a group of experts in fields related to health care research who are invited by AHRQ, and agree to be available, to conduct on an as needed basis, scientific reviews of applications for AHRQ support. Individual members of the Panel do not attend regularly scheduled meetings and do not serve for fixed terms or a long period of time. Rather, they are asked to participate in particular review meetings which require their type of expertise.
The SEP meeting referenced above will be closed to the public in accordance with the provisions set forth in 5 U.S.C. App. 2, section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6). Grant applications for “Consumer Assessment of Healthcare Providers and Systems (CAHPS) VI (U18)” are to be reviewed and discussed at this meeting. 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. Agenda items for this meeting are subject to change as priorities dictate.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for Supplemental Evidence and Data Submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review on
Jenae Benns, Telephone: 301-427-1496 or Email:
The Agency for Healthcare Research and Quality has commissioned the Evidence-based Practice Center (EPC) Program to complete a review of the evidence for
The EPC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by requesting information from the public (
This is to notify the public that the EPC Program would find the following information on ADHD Diagnosis and Treatment in Children and Adolescents helpful:
A list of completed studies that your organization has sponsored for this indication. In the list, please
Description of whether the above studies constitute
Your contribution is very beneficial to the Program. Materials submitted must be publicly available or able to be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EPC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EPC Program website and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
The systematic review will answer the following questions. This information is provided as background. AHRQ is not requesting that the public provide answers to these questions.
• What is the comparative diagnostic accuracy of approaches that can be used in the primary care practice setting or by specialists to diagnose ADHD among individuals younger than 7 years of age?
• What is the comparative diagnostic accuracy of EEG, imaging, or approaches assessing executive function that can be used in the primary care practice setting or by specialists to diagnose ADHD among individuals aged 7 through 17?
• For both populations, how does the comparative diagnostic accuracy of these approaches vary by clinical setting, including primary care or specialty clinic, or patient subgroup, including age, sex, or other risk factors associated with ADHD?
• What are the adverse effects associated with being labeled correctly or incorrectly as having ADHD?
• How do these outcomes vary by presentation (inattentive, hyperactive/impulsive, and combined) or other comorbid conditions?
• What is the risk of diversion of pharmacologic treatment?
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS), announces the following meeting of the Advisory Committee on Immunization Practices (ACIP). This meeting is open to the public. Time will be available for public comment.
The meeting will be held on July 19, 2022, from 10:00 a.m. to 3:00 p.m., EDT (times subject to change). The meeting will be webcast live via the World Wide Web. Written comments must be received on or before July 26, 2022.
You may submit comments, identified by Docket No. CDC-2022-0085, by either of the following methods:
•
•
Stephanie Thomas, ACIP Committee Management Specialist, Centers for Disease Control and Prevention, National Center for Immunization and Respiratory Diseases, 1600 Clifton Road NE, Mailstop H24-8, Atlanta, Georgia 30329-4027; Telephone: (404) 639-8367; Email:
In accordance with 41 CFR 102-3.150(b), less than 15 calendar days' notice is being given for this meeting due to the exceptional circumstances of the COVID-19 pandemic and rapidly evolving COVID-19 vaccine development and regulatory processes. The Secretary of Health and Human Services has determined that COVID-19 is a Public Health Emergency. A notice of this Advisory Committee on Immunization Practices (ACIP) meeting has also been posted on CDC's ACIP website at:
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
If the number of persons requesting to speak is greater than can be reasonably accommodated during the scheduled time, CDC will conduct a lottery to determine the speakers for the scheduled public comment session. CDC staff will notify individuals by email on July 18, 2022 regarding their request to speak. To accommodate the significant interest in participation in the oral public comment session of ACIP meetings, each speaker will be limited to three minutes, and each speaker may speak only once per meeting.
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
Part C (CDC) of the Statement of Organization, Functions, and Delegations of Authority of HHS (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 86 35511-35520, dated July 6, 2021) is amended to reflect the reorganization of the National Center for Injury Prevention and Control (NCIPC), Deputy Director for Non-Infectious Diseases, CDC. This reorganization approved by the Director, CDC, on July 1, 2022, will streamline the current organizational structure, improve the overall employee/supervisor ratio, eliminate workflow inefficiencies, and improve customer service.
I. Under Part C, Section C-B, Organization and Functions, make the following changes:
• Update the functional statements for the Division of Violence Prevention (CUHC)
• Update the functional statements for the Office of the Director (CUHC1)
• Establish the Office of Policy, Partnerships, and Communication (CUHC12)
• Establish the Office of Senior Director for Scientific Programs (CUHC13)
• Establish the Office of the Associate Director for Science (CUHC13b)
• Establish the Office of the Deputy Director for Management and Program Operations (CUHC14)
• Establish the Office of Management and Operations (CUHC14b)
• Update the functional statements for the Surveillance Branch (CUHCB)
• Update the functional statements for the Research and Evaluation Branch (CUHCC)
• Retitle the Prevention Practice and Translation Branch to the Violence Prevention Practice and Translation Branch (CUHCD)
• Update the functional statements for the Field Epidemiology and Prevention Branch (CUHCE)
• Establish the Community Violence Prevention Practice and Translation Branch (CUHCG)
• Update the functional statements for the Division of Injury Prevention (CUHF)
• Update the functional statements for the Office of the Director (CUHF1)
• Establish the Office of Science (CUHF12)
• Establish the Office of Policy and Partnerships (CUHF13)
• Establish the Office of Management and Operations (CUHF14)
• Establish the Office of Communications (CUHF15)
• Update the functional statements for the Division of Overdose Prevention (CUHG)
• Update the functional statements for the Office of the Director (CUHG1)
• Establish the Office of Policy, Planning, and Partnerships (CUHG12)
• Establish the Office of the Associate Director for Program Implementation (CUHG13)
• Establish the Office of the Deputy Director for Scientific Programs (CUHG14)
• Establish the Office of the Associate Director for Science (CUHG14b)
• Establish the Office of the Associate Director for Management Operations (CUHG15)
• Establish the Office of Management and Operations (CUHG15b)
• Update the functional statements for the Epidemiology and Surveillance Branch (CUHGB)
• Update the functional statements for the Health Systems and Research Branch (CUHGC)
• Update the functional statements for the Prevention Programs and Evaluation Branch (CUHGD)
• Update the functional statements for the Drug-Free Communities Branch (CUHGE)
• Update the functional statements for the Communications Branch (CUHGG)
• Establish the State Program Implementation Branch (CUHGH)
II. Under Part C, Section C-B, Organization and Functions, insert the following:
•
•
•
(7) collaborates with subject matter experts, program and policy staff, develops and implements communication strategies, campaigns, and plans to meet the needs of division programs and NCIPC's mission, to provide leadership in preventing and controlling injuries by reducing the incidence, severity, and adverse outcomes of injury; (8) provides consultation on international violence prevention and control activities of the division; and (9) establishes linkages and collaborates, as appropriate, with other divisions and offices in NCIPC, with other CIOs throughout CDC, nongovernmental organizations; and with national level prevention partners that impact violence prevention programs.
•
•
(2) promotes DVP-funded science programs and activities, and advocates for science within the organization; (3) provides leadership on science policy development and implementation; (4) oversees scientific clearance and related quality assurance; (5) provides representation on scientific issues, internally within CDC and externally with partners; (6) contributes to the development of new scientific advances by preparing manuscripts for publication in scientific and technical journals and publications, including articles and guidelines published in the Morbidity and Mortality Weekly Report (MMWR) and other publications for the public; (7) supports scientific training opportunities and mentorship to scientists and fellows; and (8) in coordination with the NCIPC OS, reviews and approves surveillance, programmatic, and research project concepts, and ensures their compliance with federal regulations.
•
(6) reviews the effectiveness and efficiency of all administration and operations of division programs and units.
•
•
(2) conducts national, state, and local surveillance and surveys to identify new and monitor recognized forms of violence and its consequences, analyzes and interprets data, examines patterns in health equity (
•
•
•
(9) disseminates scientific findings, evidence-based prevention strategies, and violence prevention guidelines through publication of research findings in professional journals and government reports, through participation in national and international meetings, seminars, and conferences, and through the development of communication initiatives; (10) establishes and sustains partnerships with other CDC CIOs and federal and non-government partners to improve the health and safety of youth by linking systematic measurement of violence with multi-sectoral, effective, scalable, and sustainable actions to reduce violence and its consequences; (11) works to reduce community violence by supporting state and local violence prevention and control programs and promote the dissemination and application of science into program practice in the violence prevention field;
(12) synthesizes relevant research, evaluation findings, evidence, and trends to develop practical guidance and resources that enhance community violence prevention programs, strategies, and activities; (13) leverages and applies science-based information to help organizations and government agencies to use data to inform public health action to develop, evaluate, and improve programs and strategies to prevent violence-related injuries, health problems, and deaths; (14) provides expert consultation and technical assistance, consultation, training, and epidemiological, statistical, and other technical services to assist international and local health entities in the planning, implementation, application, evaluation, and overall improvement of violence monitoring and violence prevention programming; and (15) in carrying out the above functions, collaborates with other divisions and offices of NCIPC, CIOs, HHS agencies, other federal, state, and local departments and agencies, academic institutions, private sector, voluntary, and international organizations, as appropriate on all aspects of violence surveillance.
•
•
•
•
•
•
•
•
•
•
•
(3) fosters and promotes opportunities for cross-program learning and leverages program synergies to improve coordination, consistency, and efficiencies across the division's programmatic efforts aimed at reducing overdoses; (4) collaborates with other offices, CIOs, and national partners to identify and execute opportunities that increase the scope, reach, and impact of the division's overdose prevention strategies; (5) establishes and maintains relationships with national partners and other key stakeholders to strengthen technical assistance and enhance subject matter expertise; (6) provides cross-cutting leadership, expertise, and guidance to inform and execute on program planning, development, and implementation of efforts, strategies, and activities to combat the changing drug overdose epidemic; (7) leverages programmatic data and research findings to inform the development and/or implementation of strategies, policies, and interventions; and (8) develops tools and resources to support the implementation of the division's overdose surveillance and prevention strategies and activities.
•
•
•
•
•
•
•
•
•
•
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 87 FR 36133, dated June 15, 2022) is amended to reflect the reorganization of the staff offices within the Office of the Director, Centers for Disease Control and Prevention (CDC). This reorganization approved by the Director, CDC, on July 5, 2022, will streamline the current organizational structure, improve the overall employee/supervisor ratio, eliminate workflow inefficiencies, and improve customer service.
I. Under Part C, Section C-B, Organization and Functions, the following organizational units are deleted in its entirety:
II. Under Part C, Section C-B, Organization and Functions, make the following change:
II. Under Part C, Section C-B, Organization and Functions, insert the following:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
III.
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 August 15, 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 proposed collection(s) summarized in this notice, you may make your request using one of following:
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.
2.
3.
Interested parties such as hospitals, device manufacturers, pharmaceutical companies, and physicians apply for transitional pass-through payment for certain items used with services covered in the outpatient PPS. After we receive all requested information, we evaluate the information to determine if the creation of an additional category of medical devices for transitional pass-through payments is justified. We may request additional information related to the proposed new device category, as needed. We advise the applicant of our decision, and update the outpatient PPS during its next scheduled quarterly payment update cycle to reflect any newly approved device categories. We list below the information that we require from all applicants. The following information is required to process requests for additional categories of medical devices for transitional pass-through payments.
4.
5.
Data collected in the national implementation of the ICH CAHPS Survey are used for the following purposes:
• To provide a source of information from which selected measures can be publicly reported to beneficiaries as a decision aid for dialysis facility selection.
• To aid facilities with their internal quality improvement efforts and external benchmarking with other facilities.
• To provide CMS with information for monitoring and public reporting purposes.
• To support the ESRD Quality Improvement Program.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Instructions for Use—Patient Labeling for Human Prescription Drug and Biological Products—Content and Format.” This guidance provides recommendations for developing the content and format of an Instructions for Use (IFU) document for human prescription drug and biological products, as well as drug-led or biologic-led combination products submitted under a new drug application (NDA) or a biologics license application (BLA). The IFU is written for patients (or their caregivers) who use drug products that have complicated or detailed patient-use instructions. The recommendations in this guidance are intended to help ensure that patients receive clear and concise information that is easily understood for the safe and
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002, or to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Chris Wheeler, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 3330, Silver Spring, MD 20993, 301-796-0151; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-7911.
FDA is announcing the availability of a guidance for industry entitled “Instructions for Use—Patient Labeling for Human Prescription Drug and Biological Products—Content and Format.” The recommendations in this guidance are intended to help ensure that patients receive clear and concise information that is easily understood for the safe and effective use of such products and to help provide consistency to the content and format of IFU documents.
The IFU is a form of prescription drug labeling. For drugs for which self-administration may be complicated (such as requiring the patient to perform multiple steps to prepare, administer, store, and/or dispose of the drug), the IFU is intended to give directions that are clear and understandable for patients, and therefore, promote the safe and effective use of that drug. For example, IFUs may be appropriate for a drug product with one set of dosing instructions for adult patients and another set for pediatric patients. The IFU is developed by the applicant, reviewed and approved by FDA, and provided to patients when the drug product is dispensed.
This guidance finalizes the draft guidance entitled “Instructions for Use—Patient Labeling for Human Prescription Drug and Biological Products and Drug-Device and Biologic-Device Combination Products—Content and Format,” issued on July 2, 2019 (84 FR 31598). FDA considered comments received on the draft guidance as the guidance was finalized. Changes from the draft to the final guidance include a change in title in addition to editorial changes to improve clarity.
This guidance is being issued consistent with FDA's good guidance
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 201 have been approved under OMB control number 0910-0572; the collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001; and the collections of information in 21 CFR part 601 have been approved under OMB control number 0910-0338.
Persons with access to the internet may obtain the guidance at
Food and Drug Administration, Health and Human Services (HHS).
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by August 15, 2022.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Jonnalynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
On June 22, 2009, the Family Smoking Prevention and Tobacco Control Act (the Tobacco Control Act) (Pub. L. 111-31) was signed into law. The Tobacco Control Act amended the Federal Food, Drug, and Cosmetic Act (FD&C Act) and granted FDA authority to regulate the manufacture, marketing, and distribution of tobacco products to protect public health generally and to reduce tobacco use by minors.
FDA issued a final rule on May 10, 2016 (81 FR 28707) that requires domestic manufacturers and importers of cigars and pipe tobacco to submit information needed to calculate the amount of user fees assessed under the FD&C Act (
As noted, FDA issued a final rule that requires domestic tobacco product manufacturers and importers to submit information needed to calculate the amount of user fees assessed under the FD&C Act. The U.S. Department of Agriculture (USDA) had been collecting this information and provided FDA with the data the Agency needed to calculate the amount of user fees assessed to tobacco product manufacturers and importers. USDA ceased collecting this information in fiscal year 2015 (October 2014). USDA's information collection did not require OMB approval, per an exemption by Public Law 108-357, section 642(b)(3). Consistent with the requirements of the FD&C Act, FDA requires the submission of this information to FDA. FDA took this action to ensure that the Agency continues to have the information needed to calculate, assess, and collect
Section 919(a) of the FD&C Act (21 U.S.C. 387s(a)) requires FDA to “assess user fees on, and collect such fees from, each manufacturer and importer of tobacco products” subject to the tobacco product provisions of the FD&C Act (chapter IX of the FD&C Act). The total amount of user fees to be collected for each fiscal year is specified in section 919(b)(1) of the FD&C Act and, under section 919(a), FDA is to assess and collect a proportionate amount each quarter of the fiscal year. The FD&C Act provides for the total assessment to be allocated among the classes of tobacco products. The class allocation is based on each tobacco product class's volume of tobacco product removed into commerce. Within each class of tobacco products, an individual domestic manufacturer or importer is assessed a user fee based on its share of the market for that tobacco product class.
To make reporting requirements for this collection easier for respondents, FDA offers respondents the ability to provide their user fee submission information via an electronic form (Form FDA 3852). To learn more about the electronic submission process and download Form FDA 3852 respondents may go to:
In the
FDA estimates the burden of this collection of information as follows:
Recordkeeping burden hours for § 1150.5(a) and (b), Form FDA 3852, and § 1150.13 appearing in the notice published in the
FDA estimates that entities will submit tobacco product user fee reports for approximately 700 Alcohol and Tobacco Tax and Trade Bureau (TTB) permits in a given month. The permit count was derived from aggregate data of active permit holders provided by the TTB and reflects that in FY21, there was an average of 234 total permitted manufacturers and 466 permitted importers reporting tobacco user fees over all tobacco product types for which TTB assesses excise taxes (including cigarettes, cigars, snuff, chewing tobacco, pipe tobacco, and roll-your-own tobacco).
FDA estimates it will take 3 hours for each of these submission types for a total of 25,200 hours annually. Under § 1150.5(b)(3), these respondents are also expected to provide monthly certified copies of the returns and forms that relate to the removal of tobacco products into domestic commerce and the payment of Federal excise taxes imposed under chapter 52 of the Internal Revenue Code of 1986 to FDA. We estimate that each monthly report will take 1 hour for a total of 8,400 hours annually.
The estimate of 376 respondents required to submit payment of user fee information under § 1150.13 reflects an average across the 4 quarters for FY21 assessments issued to entities. FDA estimates the quarterly submission will take approximately 1 hour for a total of 1,504 hours annually.
FDA estimates that five of those respondents assessed user fees will dispute the amounts under § 1150.15(a), for a total amount of 50 hours. FDA also estimates that three respondents who dispute their user fees will ask for further review by FDA under § 1150.15(d), for a total amount of 30 hours. FDA has received nine dispute submissions since fiscal year 2015. Based on this data, the Agency does not believe we will receive more than five disputes and three requests for further reviews in the next 3 years.
FDA estimates the total annual burden for this collection of information is 35,184 hours. The estimated burden for the information collection reflects an overall decrease of 444 hours. We attribute this adjustment to a slight decrease in the number of entities submitting tobacco user fee information to FDA.
Food and Drug Administration, Health and Human Services (HHS).
Notice.
The Food and Drug Administration (FDA) is announcing the revocation of the Emergency Use Authorization (EUA) (the Authorization) issued to ScienCell Research Laboratories (ScienCell) for the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RT-qPCR) Detection
The Authorization for the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RT-qPCR) Detection Kit is revoked as of June 7, 2022.
Submit a written request for a single copy of the revocation to the Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4338, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the revocation may be sent. See the
Jennifer J. Ross, Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4332, Silver Spring, MD 20993-0002, 240-402-8155 (this is not a toll-free number).
Section 564 of the FD&C Act (21 U.S.C. 360bbb-3) as amended by the Project BioShield Act of 2004 (Pub. L. 108-276) and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5) allows FDA to strengthen the public health protections against biological, chemical, nuclear, and radiological agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. On April 3, 2020, FDA issued an EUA to ScienCell for the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RT-qPCR) Detection Kit, subject to the terms of the Authorization. Notice of the issuance of this Authorization was published in the
In a request received by FDA on June 2, 2022, ScienCell requested revocation of, and on June 7, 2022, FDA revoked, the Authorization for the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RT-qPCR) Detection Kit. Because ScienCell notified FDA that ScienCell decided to discontinue distribution of the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RTqPCR) Detection Kit and requested FDA revoke the EUA for the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RT-qPCR) Detection Kit, FDA has determined that it is appropriate to protect the public health or safety to revoke this Authorization.
An electronic version of this document and the full text of the revocation is available on the internet at
Having concluded that the criteria for revocation of the Authorization under section 564(g)(2)(C) of the FD&C Act are met, FDA has revoked the EUA of ScienCell for the ScienCell SARS-CoV-2 Coronavirus Real-time RT-PCR (RTqPCR) Detection Kit. The revocation in its entirety follows and provides an explanation of the reasons for revocation, as required by section 564(h)(1) of the FD&C Act.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct activities intended to enhance the propagation and survival of endangered species under the Endangered Species Act. We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing the requested permits, we will take into consideration any information that we receive during the public comment period.
We must receive your written comments on or before August 15, 2022.
•
•
Colleen Henson, Regional Recovery Permit Coordinator, Ecological Services, (503) 231-6131 (phone);
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications for permits under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA's definition of “take” includes such activities as pursuing, harassing, trapping, capturing, or collecting, in addition to hunting, shooting, harming, wounding, or killing.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Written comments we receive become part of the administrative record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue a permit to an applicant listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Department of the Interior.
Notice of public listening sessions and extension of public comment period.
The Department of the Interior is announcing the dates of public listening sessions the Interagency Working Group on Mining Regulations, Laws, and Permitting is holding to gather information and develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes. We are also extending the comment period on our March 31, 2022, request for information notice announcing the formation of an interagency working group to gather information and develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes.
The public comment period on our request for information notice that published on March 31, 2022, at 86 FR 18811 is extended. Interested persons are invited to submit comments by 11:59 p.m. August 30, 2022.
The interagency group will host virtual public listening sessions at the dates and times below.
Please register at the following link to receive further communication regarding the details of the listening session, including an invite.
Listening sessions may end before the time noted above if all those participating have completed their oral comments.
Comments may be submitted through
Steven Feldgus, Deputy Assistant Secretary, Land and Minerals Management, (202) 208-6734, or by email at
On February 24, 2021, President Biden signed Executive Order (E.O.) 14017, “America's Supply Chains.” On June 8, 2021, the White House released the 100-Day reviews directed by E.O. 14017, which included a recommendation for the Federal government to establish “an interagency team with expertise in mine permitting and environmental law to identify gaps in statutes and regulations that may need to be updated to ensure new production meets strong environmental standards throughout the lifecycle of the project; ensure meaningful community consultation and consultation with tribal nations, respecting the government-to-government relationship, at all stages of the mining process; and examine opportunities to reduce time, cost, and risk of permitting without compromising these strong environmental and consultation benchmarks.”
On September 16, 2021, the Department of the Interior (Department) received a petition for rulemaking pursuant to the Department's regulations at 43 CFR part 14 from 9 Tribal and 31 conservation groups requesting “a rulemaking to strengthen and modernize [the Bureau of Land Management's] regulations at 43 CFR part 3800
On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act (IIJA); section 40206 of the IIJA, “Critical Minerals Supply Chains and Reliability,” directs the Secretaries of the Interior and Agriculture to submit a report to Congress by November 15, 2022, that “identifies additional measures, including regulatory and legislative proposals, if appropriate, that would increase the timeliness of permitting activities for the exploration and development of domestic critical minerals.”
To respond to these directives and the rulemaking petition, the Department has created an interagency working group (IWG) on Federal hardrock mining laws, regulations, and permitting, chaired by the Department and including the Department of Agriculture through the U.S. Forest Service; the Environmental
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Forest Service, Agriculture (USDA); Bureau of Land Management, Interior (DOI).
Request for information.
The United States Department of Agriculture (USDA), United States Forest Service (Forest Service), and the United States Department of the Interior (DOI), Bureau of Land Management (BLM), invite public comment to inform the response to Executive Order Strengthening the Nation's Forests, Communities, and Local Economies which requires USDA and DOI to define old-growth and mature forests on Federal lands; complete an inventory and make it publicly available; coordinate conservation and wildfire risk reduction activities; identify threats to mature and old-growth forests; develop policies to address threats; develop Agency-specific reforestation goals by 2030; develop climate-informed reforestation plans; and develop recommendations for community-led local and regional economic development opportunities.
A webinar will be held for interested members of the public on July 21, 2022. More information about this session (including specific time and how to attend) will be posted to the Forest Service website (
The webinar will be held on Microsoft Teams web conferencing software. The webinar will be recorded. Information about how to attend the webinar, presentation materials used during the webinar, and the webinar recording will be posted to:
Jamie Barbour, Assistant Director, Ecosystem Management Coordination, (503) 708-9138,
The purpose of this RFI is to inform the public and gather feedback on potential future implementation efforts associated with provisions of Executive Order (E.O.) 14072: Strengthening the Nation's Forests, Communities, and Local Economies, issued April 22, 2022. The focus of this current request for information is to inform the response to E.O. 14072 Section 2(b) specifically, which calls on the Secretaries of Agriculture and the Interior, within one year, to define, identify, and complete an inventory of old-growth and mature forests on Federal lands, accounting for regional and ecological variations, as appropriate, and making the inventory publicly available.
USDA and DOI recognize definition development as a pivotal first step in meeting the subsequent identification and inventory requirements of E.O. 14072. Development of the definition, followed by identification and inventory will then be used to inform subsequent needs identified in E.O. 14072 Section 2(c) (
This effort is also directly connected to the Secretary's Memorandum 1077-004: Climate Resilience and Carbon Stewardship of America's National Forests and Grasslands (issued June 23, 2022, by the Secretary of Agriculture,
Defining old growth and mature forests for purposes of conducting an inventory as required under E.O. 14072 Section 2(b) does not, by itself, change any current forest management policies or practices. Developing policies to institutionalize climate-smart management and conservation strategies that address threats to mature and old-growth forests on Federal land as stated in E.O. 14072 Section 2(c) will follow completion of definition development, identification, and inventory.
Defining old-growth and mature forests has evolved with our scientific understanding of these unique ecosystems. Previous definitions include a general old-growth one included in a 1989, Forest Service Chief's letter to Regional Foresters which reads: “Old-growth forests are ecosystems distinguished by old trees and related structural attributes. Old-growth encompasses the later stages of stand development that typically differ from earlier stages in a variety of characteristics, which may include tree size, accumulations of large dead woody material, number of canopy layers, species composition, and ecosystem function.” Today, most scientists agree that old-growth forests differ widely in character with age, geographic location, climate, site productivity, and characteristic disturbance regime. Mature and old-growth forests also reflect diverse spiritual and cultural values for these special places.
Gathering and synthesizing old-growth forest information at a national scale continues to progress. Data sources exist, including the Forest Service Inventory and Analysis Program. Yet,
• What criteria are needed for a universal definition framework that motivates mature and old-growth forest conservation and can be used for planning and adaptive management?
• What are the overarching old-growth and mature forest characteristics that belong in a definition framework?
• How can a definition reflect changes based on disturbance and variation in forest type/composition, climate, site productivity and geographic region?
• How can a definition be durable but also accommodate and reflect changes in climate and forest composition?
• What, if any, forest characteristics should a definition exclude?
Additional information about this effort, including a link to the recorded webinar, can be found at:
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before July 2, 2022, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by August 1, 2022.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before July 2, 2022. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
Additional documentation has been received for the following resources:
Nominations submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nominations and responded to the Federal Preservation Officer within 45 days of receipt of the nominations and supports listing the properties in the National Register of Historic Places.
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of intent (NOI) to prepare a programmatic environmental impact statement (PEIS); request for comments.
Consistent with the regulations implementing the National Environmental Policy Act (NEPA), BOEM announces its intent to prepare a PEIS to analyze the potential impacts of wind energy development activities in the New York Bight (NY Bight), as well as the change in those impacts that could result from adopting programmatic avoidance, minimization, mitigation, and monitoring (AMMM) measures for the NY Bight. This NOI announces the scoping process BOEM will use to identify significant issues and potential alternatives for consideration in the NY Bight PEIS. Detailed information can be found on BOEM's website at:
Comments received by August 15, 2022, will be considered.
BOEM will hold virtual public scoping meetings for the NY Bight PEIS at the following dates and times (eastern time):
Registration for the public meetings may be completed here:
Written comments can be submitted in any of the following ways:
• Delivered by mail or delivery service, enclosed in an envelope labeled, “NY BIGHT PEIS” and addressed to Chief, Division of Environmental Assessment, Office of Environmental Programs, Bureau of Ocean Energy Management, 45600 Woodland Road VAM-OEP, Sterling, Virginia 20166; or
•
Jill Lewandowski, BOEM Office of Environmental Programs, 45600 Woodland Road, Sterling, Virginia 20166, telephone (703) 787-1703, or email
In February 2022, through a competitive leasing process under 30 CFR 585.211, BOEM awarded Commercial Leases OCS-A 0537, 0538, 0539, 0541, 0542, and 0544 covering an area offshore New York and New Jersey known as the NY Bight and totaling over 488,000 acres. The leases grant the lessees the exclusive right to submit construction and operation plans (COPs) to BOEM proposing the construction, operation, and conceptual decommissioning of offshore wind energy facilities in the lease areas. Through an intergovernmental renewable energy task force that included the States of New York and New Jersey and numerous Federal agencies and Tribal and local governments, BOEM identified these lease areas for consideration in development of commercial-scale offshore wind energy projects, subject to the appropriate reviews and approvals.
Potential development of the leaseholds would assist with meeting several State mandates for renewable energy. New Jersey's goal of 7.5 gigawatts (GW) of offshore wind energy generation by 2035 is outlined in New Jersey Executive Order No. 92, issued on November 19, 2019. New York's goal of 9.0 GW of offshore wind energy generation by 2035 is outlined in the Climate Leadership and Community Protection Act, signed into law on July 18, 2019. Based on a conservative power ratio of 3 megawatts per square kilometer, BOEM estimates that full development of leases in this area has the potential to create up to 5.6 to 7 GW of offshore wind energy.
The Proposed Action for the PEIS is the adoption of programmatic AMMM measures that BOEM may require as conditions of approval for activities proposed by lessees in COPs submitted for the NY Bight unless the COP-specific NEPA analysis shows that implementation of such measures is not warranted or effective. BOEM may require additional or different measures based on subsequent, site-specific NEPA analysis or the parameters of specific COPs. These AMMM measures are considered programmatic insofar as they may be applied to COPs within the whole NY Bight area, not because they necessarily will apply to COPs under BOEM's renewable energy program outside of the NY Bight area. The PEIS will analyze the potential impacts of development in the NY Bight and how those impacts can be avoided, minimized, or mitigated by AMMM
The purpose of the Proposed Action is to identify, analyze, and adopt, as appropriate, issues, degree of potential impacts, and AMMM measures. The site-specific NEPA analyses and consultations for each proposed wind energy project will focus on the impacts of approving a particular COP, including identification of AMMM measures that are best suited for consideration in the COP-specific NEPA analysis. The Proposed Action is needed to help BOEM make timely decisions on COPs submitted for the NY Bight. Timely decisions further the United States policy to make Outer Continental Shelf (OCS) energy resources available for expeditious and orderly development, subject to environmental safeguards (43 U.S.C. 1332(3)) and other requirements listed at 43 U.S.C. 1337(p)(4), including protection of the environment, among several other factors. Project-specific NEPA analysis for individual COPs will tier to or incorporate by reference this PEIS and could apply additional or different AMMM measures as needed.
A broader approach to the NEPA analysis for the six COPs expected for the NY Bight is consistent with Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad,” issued on January 27, 2021. In that order, President Biden stated that the policy of his administration is “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.” To support the goals outlined in Executive Order 14008, the administration has also announced plans to increase renewable energy production, with a goal of 30 GW of offshore wind energy capacity by 2030.
Through the development of this PEIS, BOEM will address the following objectives:
• Analysis of the impacts expected from a representative project in the NY Bight that is informed by input provided by the lessees on the type of projects they intend to develop;
• Analysis of programmatic AMMM measures for the NY Bight;
• Focused, regional cumulative analysis;
• Identification of minor or negligible impacts so that site-specific reviews can focus on moderate or major impacts; and
• Tiering of project-specific environmental analyses.
The analysis in this PEIS will provide a framework for its integration with site-specific NEPA reviews. The framework will provide a way for project-specific analyses to determine whether the project will have greater, equal, or fewer impacts than those that were analyzed in the PEIS by considering the level of action analyzed and the particularities of the site. Future COP-specific NEPA documents will make impact determinations for the specific project and affected resources and will focus on moderate to major impacts. The COP-specific NEPA analyses of potential impacts to resources will not generally revisit resources for which the PEIS analysis has indicated that the impact is likely to be negligible to minor. However, these impacts may be revisited if warranted by particular characteristics of the site or proposed project that suggest that the impact determination might shift to moderate or major.
As noted above, the Proposed Action does not include the approval of any activities. The Proposed Action is the adoption of programmatic AMMM measures that BOEM may require as conditions of approval for activities proposed by lessees in COPs submitted for the NY Bight. BOEM may require additional or modified measures based on subsequent, site-specific NEPA analysis or the parameters of specific COPs. The analysis of the Proposed Action considers the change in potential impacts resulting from the AMMM measures. The analysis of the Proposed Action assumes that a representative project will be developed for the NY Bight and considers the potential impacts of that development on the environment. The activities scenario upon which analysis of the Proposed Action is based is that of a representative project, including associated export cables, within a range of design parameters informed by lessees. By developing the activities scenario based on a representative project design envelope created with the input of the lessees that will be submitting the COPs for the NY Bight, BOEM avoids engaging in speculative analysis of potential impacts. The Proposed Action does not itself require any actions by BOEM or lessees.
If any reasonable alternatives to the Proposed Action are identified during the scoping period, BOEM will evaluate those alternatives in the draft PEIS, which will also include a no action alternative (NAA). The NAA considers no development of the lease areas in the NY Bight. This alternative provides analysis for tiering at the COP-specific NEPA stage, including context that can be used in COP-specific NEPA analyses and against which proposed actions at the COP-specific stage may be compared. In addition, the analysis of the adoption of AMMM measures for the NY Bight is predicated upon an understanding of the impacts of development, which in turn are predicated on an understanding of the impacts of no development.
The draft PEIS will also include an alternative that analyzes the impacts of not adopting the programmatic AMMM measures for a representative project in the NY Bight. This alternative will facilitate comparison of the potential impacts from a representative project with and without the AMMM measures. In addition, this alternative will provide analyses that can be incorporated at the COP-specific stage and allow the analysis at that stage to focus on issues particular to the specific COP.
Potential impacts to resources may include adverse or beneficial impacts on air quality, water quality, bats, benthic habitat, essential fish habitat, invertebrates, finfish, birds, marine mammals, terrestrial and coastal habitats and fauna, sea turtles, wetlands and other waters of the United States, commercial fisheries and for-hire recreational fishing, cultural resources, demographics, employment, economics, environmental justice, land use and coastal infrastructure, navigation and vessel traffic, other marine uses, recreation and tourism, and scenic and visual resources. These potential impacts will be analyzed in the draft and final PEIS.
Based on a preliminary evaluation of these resources, BOEM expects potential impacts on certain marine life from underwater noise caused by construction and on marine mammals from collisions with project-related vessel traffic. Structures installed by the projects could permanently change benthic and fish habitats (
Neither the PEIS nor the resulting programmatic record of decision (ROD) will authorize any activities or approve any individual applications. The PEIS and ROD will provide a programmatic environmental analysis and framework to support future decision-making on individual COP submittals. When COPs are submitted to BOEM, the site-specific characteristics of the project will be evaluated by preparing additional environmental analyses that may tier from this PEIS or may incorporate it by reference. Based on the site-specific applications and evaluations, BOEM may then reach a site-specific determination and approve, approve with modifications, or deny individual COPs. This PEIS will inform future BOEM decisions on COP submittals but will not approve or authorize any applications or plans. Therefore, neither this PEIS nor its resulting ROD would constitute a final agency action authorizing or approving any individual COPs.
In conjunction with this PEIS, BOEM will undertake various consultations in accordance with applicable Federal laws, such as the Endangered Species Act, Magnuson‐Stevens Fishery Conservation and Management Act, National Historic Preservation Act, Marine Mammal Protection Act, Rivers and Harbors Act, Clean Water Act, and the Coastal Zone Management Act. However, it may be determined that some of these consultations are better suited for the COP-specific decision stage. BOEM will also conduct government-to-government Tribal consultations.
After the draft PEIS is completed, BOEM will publish a notice of availability (NOA) and request public comments on the draft PEIS. BOEM currently expects to issue the NOA in September 2023. After the public comment period ends, BOEM will review and respond to comments received and will develop the final PEIS. BOEM currently expects to make the final PEIS available to the public in June 2024. BOEM would issue any ROD no sooner than 30 days after the final PEIS is made available.
The ROD for the NY Bight PEIS is expected to (1) identify certain programmatic AMMM measures that BOEM may require as conditions of approval on COPs in the NY Bight, (2) identify the AMMM measures that should (or should not) be considered in a COP-specific NEPA analysis, and (3) require BOEM to use a tiered review process that relies on the analyses in the PEIS for the COPs expected to be filed for the six leases issued in the NY Bight.
This NOI commences the public scoping process to identify issues and potential alternatives for consideration in the NY Bight PEIS. BOEM will hold virtual public scoping meetings at the times and dates described above under the
BOEM will also use the NEPA comment process to initiate the section 106 consultation process under the National Historic Preservation Act (NHPA) (54 U.S.C. 300101
Before publication of this NOI, BOEM met with NY Bight leaseholders, interested Federal agencies, Tribal governments, and other potential State partners to provide information on the NY Bight programmatic approach. Additionally, BOEM met separately with the National Marine Fisheries Service and the U.S. Army Corps of Engineers to discuss how the programmatic analysis may support and streamline their project-level approvals, as well as with the Advisory Council on Historic Preservation to discuss potential approaches to section 106 consultation.
BOEM invites other Federal agencies and Tribal, State, and local governments to consider becoming cooperating agencies in the preparation of this PEIS. The Council on Environmental Quality (CEQ) NEPA regulations specify that qualified agencies and governments are those with “jurisdiction by law or special expertise.” Potential cooperating agencies should consider their authority and capacity to assume the responsibilities of a cooperating agency and should be aware that an agency's role in the environmental analysis neither enlarges nor diminishes the final decision-making authority of any other agency involved in the NEPA process.
Upon request, BOEM will provide potential cooperating agencies with a written summary of expectations for cooperating agencies, including schedules, milestones, responsibilities, scope and detail of cooperating agencies' expected contributions, and availability of pre-decisional information. BOEM anticipates this summary will form the basis for a memorandum of agreement between BOEM and any non-Department of the Interior cooperating agency. Agencies also should consider the factors for determining cooperating agency status in the CEQ memorandum entitled, “Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act,” dated January 30, 2002. This document is available on the internet at:
BOEM, as the lead agency, does not provide financial assistance to cooperating agencies. Governmental entities that are not cooperating agencies will have opportunities to provide information and comments to BOEM during the public input stages of the NEPA process.
BOEM does not consider anonymous comments. Please include your name and address as part of your comment. BOEM makes all comments, including the names, addresses, and other personally identifiable information included in the comment, available for
Additionally, under section 304 of NHPA, BOEM is required, after consultation with the Secretary of the Interior, to withhold the location, character, or ownership of historic property if it determines that disclosure may, among other things, cause a significant invasion of privacy, risk harm to the historic property, or impede the use of a traditional religious site by practitioners. Tribal entities and other parties providing information on historic resources should designate information that they wish to be held as confidential and provide the reasons why BOEM should do so.
All submissions from organizations or businesses and from individuals identifying themselves as representatives or officials of organizations or businesses will be made available for public inspection in their entirety.
BOEM requests data, comments, views, information, analysis, alternatives, or suggestions relevant to the analysis of the Proposed Action from the public; affected Federal, Tribal, State, and local governments, agencies, and offices; the scientific community; industry; or any other interested party. Specifically, BOEM requests information on the following topics:
1. Potential AMMM measures, including NY Bight wind energy development alternatives, and the effects these could have on—
a. biological resources, including bats, birds, coastal fauna, finfish, invertebrates, essential fish habitat, marine mammals, and sea turtles;
b. physical resources and conditions including air quality, water quality, wetlands, and other waters of the United States; and
c. socioeconomic and cultural resources, including commercial fisheries and for-hire recreational fishing, demographics, employment, economics, environmental justice, land use and coastal infrastructure, navigation and vessel traffic, other uses (marine minerals, military use, aviation), recreation and tourism, and scenic and visual resources.
2. As part of its compliance with section 106 of the NHPA and the implementing regulations (36 CFR part 800), BOEM intends to develop a section 106 programmatic agreement (PA) through consultation with the State Historic Preservation Officers (SHPOs), federally-recognized Tribes, the Advisory Council on Historic Preservation, and consulting parties. The PA will identify a standard process for the future identification of historic properties and the evaluation, avoidance, minimization, mitigation, and monitoring of historic properties within the New York Bight. The PA may address possible programmatic AMMM measures in the NY Bight if potential adverse effects are identified during the consultation for this PA. BOEM plans to execute the PA before the PEIS ROD is issued. The PA will clarify the section 106 consultations that will be conducted for the individual COPs. The section 106 consultations for each COP will be conducted in conjunction with the NEPA reviews for each COP and will ensure consistency with the PA.
BOEM also seeks comment and input from the public and consulting parties regarding the identification of other potential consulting parties, the identification of historic properties within the NY Bight, the potential effects on those historic properties from NY Bight wind energy development alternatives including any AMMM, and any information that supports identification of historic properties under NHPA. BOEM also solicits proposed measures to avoid, minimize, or mitigate any adverse effects on historic properties. BOEM will present available information regarding known historic properties during the public scoping period at
If any historic properties are identified, BOEM's draft PA and potential effects analysis will be available for public and consulting party comment in the draft PEIS.
3. Information on other current or planned activities in, or in the vicinity of, the NY Bight wind energy development alternatives including any AMMM measures, their possible impacts on the alternatives, and the alternatives' possible impacts on those activities.
4. Other information relevant to impacts on the human environment from potential NY Bight wind energy development alternatives, including any AMMM measures.
5. Information on the following for the development of the representative project design envelope and activities scenario: layout of turbines (analyze one or more standard layouts); setbacks identified in the leases; size (wind turbine generator nameplate capacity), dimensions (tip height, hub height, and rotor diameter) and number of turbines; offshore substation dimensions, number, and location; type of foundation; foundation installation method; scour protection; approach to cable emplacement (installation methods and disturbance corridor width); location of landfalls; onshore substation location; point of grid interconnection; ports, fabrication facilities, and staging areas; timing of onshore and offshore activities; and, associated activities such as vessel trips.
To promote informed decision-making, comments should be as specific as possible and should provide as much detail as necessary to meaningfully and fully inform BOEM of the commenter's position. Comments should explain why the issues raised are important for consideration of the Proposed Action, as well as economic, employment, and other impacts affecting the quality of the human environment.
The draft PEIS will include a summary of all alternatives, information, and analyses submitted during the scoping process for consideration by BOEM and the cooperating agencies.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping investigation Nos. 731-TA-1575 & 731-TA-1577 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of emulsion styrene-butadiene rubber (“ESBR”) from Czechia and Russia, provided for in statistical reporting numbers 4002.19.0015 and 4002.19.0019 of the Harmonized Tariff Schedule of the United States, preliminarily determined by the Department of Commerce (“Commerce”) to be sold at less-than-fair-value.
June 27, 2022.
Charles Cummings ((202) 708-1666), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
Additional written submissions to the Commission, including requests pursuant to § 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with §§ 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
U.S. International Trade Commission.
Notice.
Notice is hereby given that on June 27, 2022, the presiding administrative law judge (“ALJ”) issued an Initial Determination on Violation of Section 337. The ALJ also issued a Recommended Determination on remedy and bonding should a violation be found in the above-captioned investigation. The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation. This notice is soliciting comments from the public only.
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3042. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
Section 337 of the Tariff Act of 1930 provides that, if the Commission finds a violation, it shall exclude the articles concerned from the United States:
The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation, specifically: a limited exclusion order directed to certain wearable electronic devices with ECG functionality and components thereof imported, sold for importation, and/or sold after importation by respondent Apple Inc. of Cupertino, California (“Apple”); and cease and desist orders directed to Apple. Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4).
The Commission is interested in further development of the record on the public interest in this investigation. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the ALJ's Recommended Determination on Remedy and Bonding issued in this investigation on June 27, 2022. Comments should address whether issuance of the recommended remedial orders in this investigation, should the Commission find a violation, would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the recommended remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and
(v) explain how the recommended orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on July 27, 2022.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the investigation number (“Inv. No. 337-TA-1266”) in a prominent place on
Any person desiring to submit a document to the Commission in confidence must request confidential treatment by marking each document with a header indicating that the document contains confidential information. This marking will be deemed to satisfy the request procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) & 210.5(e)(2)). Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. Any non-party wishing to submit comments containing confidential information must serve those comments on the parties to the investigation pursuant to the applicable Administrative Protective Order. A redacted non-confidential version of the document must also be filed simultaneously with any confidential filing and must be served in accordance with Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this investigation may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel, solely for cybersecurity purposes. All contract personnel will sign appropriate nondisclosure agreements. All nonconfidential written submissions will be available for public inspection on EDIS.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Xcelience has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 15, 2022. Such persons may also file a written request for a hearing on the application on or before August 15, 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 May 17, 2022, Xcelience, 4901 West Grace Street, Tampa, Florida 33607-3807, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import drug code 7437 (Psilocybin) as finished dosage for clinical trials research, and analytical purposes. 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.
AndersonBrecon, Inc. DBA PCI Pharma Services has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 15, 2022. Such persons may also file a written request for a hearing on the application on or before August 15, 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 May 5, 2022, AndersonBrecon, Inc. DBA PCI Pharma Services, 4545 Assembly Drive, Rockford, Illinois 61109-3081, 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 for clinical trials only. 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.
AMPAC Fine Chemicals LLC, has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before September 13, 2022. Such persons may also file a written request for a hearing on the application on or before September 13, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on April 21, 2022, AMPAC Fine Chemicals LLC, Highway 50 & Hazel Avenue, Rancho Cordova, California 95670, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for distribution to its customers. No other activities for these drug codes are authorized for this registration.
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 August 15, 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
This information collection requires employers to provide and ensure that each affected employee uses the appropriate personal protective equipment (PPE) for the eyes, face, head, extremities, torso, and respiratory system, including protective clothing, protective shields, protective barriers, life-saving equipment, personal fall arrest systems, and positioning device systems that meets the applicable provisions of this subpart, whenever workers are exposed to hazards that
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.
Mine Safety and Health Administration (MSHA), Labor.
Notice.
The Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations govern the application, processing, and disposition of petitions for modification of mandatory safety standards. Any mine operator or representative of miners may petition for an alternative method of complying with an existing safety standard. MSHA reviews the content of each submitted petition, assesses the mine in question, and ultimately issues a decision on the petition. This notice includes a list of petitions for modification that were granted after MSHA's review and investigation, between January 1, 2022, and June 30, 2022.
Copies of the final decisions are posted on MSHA's website at
S. Aromie Noe, Director, Office of Standards, Regulations, and Variances at 202-693-9440 (voice),
Under section 101(c) of the Federal Mine Safety and Health Act of 1977, any mine operator or representative of miners may petition to use an alternative approach to comply with a mandatory safety standard. In response, the Secretary of Labor (Secretary) or his or her designee may modify the application of a mandatory safety standard to that mine if the Secretary determines that: (1) An alternative method exists that will guarantee no less protection for the miners affected than that provided by the standard; or (2) the application of the standard will result in a diminution of safety to the affected miners.
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision. In other instances, MSHA may deny, dismiss, or revoke a petition for modification. In accordance with 30 CFR 44.5, MSHA publishes every final action granting a petition for modification.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA granted or partially granted the petitions for modification below. Since the previous
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Technology, Innovation, and Engineering Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC.
Wednesday, August 3, 2022, 8:30 a.m.-4:15 p.m., Eastern Time.
Meeting will be a hybrid of in-person and virtual. See dial-in and Webex information below under
Mr. Mike Green, Designated Federal Officer, Space Technology Mission Directorate, NASA Headquarters, Washington, DC 20546, via email at
This meeting will only be available by Webex or telephonically for members of the public. If dialing in via toll number, you must use a touch-tone phone to participate in this meeting. Any interested person may join via Webex at
The agenda for the meeting includes the following topics:
It is imperative that this meeting be held on this day to accommodate the scheduling priorities of the key participants.
Nuclear Regulatory Commission.
Monthly notice.
Pursuant to section 189.a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular monthly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration (NSHC), notwithstanding the pendency before the Commission of a request for a hearing from any person.
Comments must be filed by August 15, 2022. A request for a hearing or petitions for leave to intervene must be filed by September 13, 2022. This monthly notice includes all amendments issued, or proposed to be issued, from May 26, 2022, to June 23, 2022. The last monthly notice was published on May 25, 2022.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Karen Zeleznock, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1118, email:
Please refer to Docket ID NRC-2022-0136, facility name, unit number(s), docket number(s), application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
•
•
•
The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
For the facility-specific amendment requests shown below, the Commission finds that the licensees' analyses provided, consistent with section 50.91 of title 10 of
The Commission is seeking public comments on these proposed determinations. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determinations.
Normally, the Commission will not issue the amendments until the expiration of 60 days after the date of publication of this notice. The Commission may issue any of these license amendments before expiration of the 60-day period provided that its final determination is that the amendment involves NSHC. In addition, the Commission may issue any of these amendments prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action on any of these amendments prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by any of these actions may file a request for a hearing and petition for leave to intervene (petition) with respect to that action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's public website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) the name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions that the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one that, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of NSHC, the Commission will make a final determination on the issue of NSHC. The final determination will serve to establish when the hearing is held. If the
A State, local governmental body, Federally recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a petition is submitted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases, to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056) and on the NRC's public website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
The following table provides the plant name, docket number, date of application, ADAMS accession number, and location in the application of the licensees' proposed NSHC determinations. For further details with respect to these license amendment applications, see the applications for amendment, which are available for public inspection in ADAMS. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
During the period since publication of the last monthly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed NSHC determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated in the safety evaluation for the amendment.
For further details with respect to each action, see the amendment and associated documents such as the Commission's letter and safety evaluation, which may be obtained using the ADAMS accession numbers indicated in the following table. The safety evaluation will provide the ADAMS accession numbers for the application for amendment and the
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management.
60-Day Notice and request for comments.
The Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on the reinstatement of an information collection request (ICR) 3206-0264, Application for U.S. Flag Recognition
Comments are encouraged and will be accepted until September 13, 2022. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection via the Federal Rulemaking Portal:
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting Senior Executive Service and Performance Management, Office of Personnel Management, 1900 E. Street NW, Suite 7412, Washington, DC 20415, Attention: Chanel Jackson or via electronic mail to
As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Civilian Service Recognition Act of 2011 (Pub. L. 112-73) authorizes an agency to furnish a United States flag on behalf of employees who die of injuries incurred in connection with their employment under specified circumstances. The U.S. Office of Personnel Management (OPM) is issuing guidance and proposed regulations to implement the Civilian Service Recognition Act of 2011. The guidance and proposed regulations will assist agencies in administering a United States flag recognition benefit for fallen Federal civilian employees. The guidance and proposed regulations describe the eligibility requirements and procedures to request a flag.
OPM Form OPM 1825, Application for U.S. Flag Recognition Benefit for Deceased Federal Civilian Employees, may be used to determine deceased Federal employee and beneficiary (
U.S. Office of Personnel Management.
On November 17, 2021, Cboe EDGX Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 22, 2021, Cboe BYX Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17a-7 requires a non-resident broker-dealer (generally, a broker-dealer with its principal place of business in a place not subject to the jurisdiction of the United States) registered or applying for registration pursuant to Section 15 of the Exchange Act to maintain—in the United States—complete and current copies of books and records required to be maintained under any rule adopted under the Exchange Act and furnish to the Commission a written notice specifying the address where the copies are located. Alternatively, Rule 17a-7 provides that non-resident broker-dealers may file with the Commission a written undertaking to furnish the requisite books and records to the Commission upon demand within 14 days of the demand.
The Commission estimates that there are approximately 30 non-resident broker-dealers. Based on the Commission's experience, the Commission estimates that the average amount of time necessary to comply with Rule 17a-7 is one hour per year per respondent. Accordingly, the Commission estimates that the total industry-wide reporting burden is approximately 30 hours per year. Assuming an average cost per hour of approximately $319 for a compliance manager, the total internal cost of compliance for the respondents is approximately $9,570 per year.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend certain rule text within Options 4A, Section 12, Terms of Index Options Contracts, and Options 7, Section 3, Regular Order Fees and Rebates.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend certain rule text within Options 4A, Section 12, Terms of Index Options Contracts, related to the Short Term Option Series Program, and update the Pricing Schedule to replace references to the symbol “FB” with “META” within Options 7, Section 3, Regular Order Fees and Rebates. Each change is described below.
In 2013, ISE amended the Short Term Option Series Program for equity options within Rule 504 (currently Options 4, Section 5) to change the number of currently listed option classes on which Short Term Option Series may be opened on any Short Term Option Opening Date from thirty to fifty options classes.
Today, Supplementary Material .01(a) to Options 4A, Section 12 provides,
At this time, the Exchange proposes to amend Supplementary Material .01(a) to Options 4A, Section 12 to increase the number of currently listed options classes on which Short Term Option Series may be opened on any Short Term Option Opening Date from thirty to fifty options classes for index options. The Exchange also proposes to add the word “thirty” before the number “30” and place the number 30 in parentheses. These amendments would align the limitations within Supplementary Material .01(a) to Options 4A, Section 12 regarding index options with those currently within Supplementary .03(a) to Options 4, Section 5 regarding equity options.
As noted above, this amendment will not result in a greater number of listings in the Short Term Option Series Program because the amount of options classes that may participate in the Short Term Option Series Program is aggregated between equity options and index options and is not apportioned between equity and index options. Amending Supplementary Material .01(a) to Options 4A, Section 12 to conform to the limitations provided within Supplementary .03(a) to Options 4, Section 5 will avoid confusion by making clear the aggregate limitations within equity and index options for listing Short Term Option Series. Today, Nasdaq Phlx LLC (`Phlx”) and Cboe Exchange, Inc. (“Cboe”) have similar limitations within their equity and index Short Term Option Series Program.
On June 9, 2022 Meta Platforms, Inc. began trading under its new stock symbol, “META”, replacing its previous ticker symbol, “FB”. At this time, the Exchange proposes to replace references to the symbol “FB” with “META” within Options 7, Section 3, Regular Order Fees and Rebates.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In 2013, ISE amended the Short Term Option Series Program for equity options within Rule 504 (currently Options 4, Section 5) to change the number of currently listed option classes on which Short Term Option Series may be opened on any Short Term Option Opening Date from thirty to fifty options classes.
The Exchange's proposal to update references to the symbol “FB” to “META” within the Pricing Schedule at Options 7, Section 3, Regular Order Fees and Rebates, is consistent with the Act. This amendment will make clear that the symbol “META” continues to be subject to the pricing noted with respect to the symbol “FB” within Options 7, Section 3.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Amending Supplementary Material .01(a) to Options 4A, Section 12 to conform to the limitations provided within Supplementary .03(a) to Options 4, Section 5 does not impose an undue burden on competition because the same limitations apply today to other options exchanges. Today, Phlx and Cboe have similar limitations within their equity and index Short Term Option Series Program.
The Exchange's proposal to update references to the symbol “FB” to “META” within the Pricing Schedule at Options 7, Section 3, Regular Order Fees and Rebates, does not impose an undue burden on competition as the proposal does not amend the current pricing.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
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 change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies and closed-end management investment companies to co-invest in portfolio companies with certain affiliated investment entities.
Cypress Creek Private Strategies Master Fund, L.P., Endowment Advisers, L.P., d/b/a Cypress Creek Partners, CCP Coastal Redwood Fund, LP, CCP Sierra Redwood Fund, LP, and Marinas I SPV, LLC.
The application was filed on November 16, 2021 and amended on December 8, 2021, May 13, 2022 and June 27, 2022.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Christopher D. Carlson, Senior Counsel, or Trace W. Rakestraw, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For applicants' representations, legal analysis, and conditions, please refer to applicants' third amended and restated application, dated June 27, 2022, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's transaction credits, at Equity 7, Section 118(e), as described further below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange operates on the “taker-maker” model, whereby it generally pays credits to members that take liquidity and charges fees to members that provide liquidity. Currently, the Exchange has a schedule, at Equity 7, Section 118(e), which consists of several different credits and fees for Retail Orders
Currently, the Exchange provides certain credits for Retail Orders that provide liquidity. The Exchange proposes to adopt a new credit of $0.0010 per share executed for Retail Orders with an accepted price greater than or equal to $10,000 that accesses liquidity provided by a Retail Price Improvement Order. The Exchange is also proposing to adjust the existing credit of $0.0021 per share executed to require the Retail Order to have an accepted price of less than $10,000. The Exchange hopes that the proposed new credit will encourage member organizations to increase liquidity providing activity on RPI Orders on the Exchange. If the proposal is effective in achieving this purpose, then the quality of the Exchange's market will improve, particularly with respect to RPI and retail orders to the benefit of all participants, especially those who submit RPI and Retail Orders.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposed change to its schedule of credits is reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for equity securities transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Numerous indicia demonstrate the competitive nature of this market. For example, clear substitutes to the Exchange exist in the market for equity security transaction services. The Exchange is only one of several equity venues to which market participants may direct their order flow, and it represents a small percentage of the overall market. It is also only one of several taker-maker exchanges. Competing equity exchanges offer similar tiered pricing structures to that of the Exchange, including schedules of rebates and fees that apply based upon members achieving certain volume thresholds.
Within this environment, market participants can freely and often do shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules.
The Exchange believes it is reasonable and equitable to adopt a new $0.0010 per share executed credit for Retail Orders with an accepted price greater than or equal to $10,000 that access liquidity provided by a Retail Price Improvement Order. Similarly, the Exchange believes that it is reasonable to adjust its existing $0.0021 credit to conform with its new proposed credit by requiring the Retail order to have an accepted price less of less than $10,000. As discussed above, the Exchange's goal is to increase liquidity adding activity in RPI Orders on its platform. It is reasonable and equitable to address this need by providing an additional credit to member organizations that meet the proposed thresholds as an incentive for them to increase their liquidity activity in RPI Orders on the Exchange. If the proposal is effective in achieving this purpose, then the quality of the Exchange's market will improve, particularly with respect to RPI and Retail orders to the benefit of all participants, especially those who submit RPI and Retail Orders.
The Exchange believes that the proposal is not unfairly discriminatory. As an initial matter, the Exchange believes that nothing about its volume-based tiered pricing model is inherently unfair; instead, it is a rational pricing model that is well-established and ubiquitous in today's economy among firms in various industries—from co-branded credit cards to grocery stores to cellular telephone data plans—that use it to reward the loyalty of their best customers that provide high levels of business activity and incent other customers to increase the extent of their business activity. It is also a pricing model that the Exchange and its competitors have long employed with the assent of the Commission. It is fair because it incentivizes customer activity that increases liquidity, enhances price discovery, and improves the overall quality of the equity markets.
The Exchange intends for its proposal to improve market quality for all members that submit RPI and Retail Orders on the Exchange and by extension attract more liquidity to the market, improving market wide quality and price discovery. Although net adders of liquidity for RPI Orders will benefit most from the proposal, this result is fair insofar as increased liquidity adding activity in RPI Orders will help to improve market quality and
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that its proposal will place any category of Exchange participant at a competitive disadvantage. As noted above, all member organizations of the Exchange will benefit from any increase in market activity that the proposal effectuates. Member organizations may modify their businesses so that they can meet the required thresholds and receive the credits. Moreover, members are free to trade on other venues to the extent they believe that the credits provided are not attractive. As one can observe by looking at any market share chart, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes. The Exchange notes that the tier structure is consistent with broker-dealer fee practices as well as the other industries, as described above.
The Exchange believes that its proposed modifications to its schedule of credits will not impose a burden on competition because the Exchange's execution services are completely voluntary and subject to extensive competition from the other live exchanges and from off-exchange venues, which include alternative trading systems that trade national market system stock. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its credits to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which credits change in this market may impose any burden on competition is extremely limited.
The proposed credit for adding liquidity is reflective of this competition because, as a threshold issue, the Exchange is a relatively small market so its ability to burden intermarket competition is limited. In this regard, even the largest U.S. equities exchange by volume has less than 17-18% market share, which in most markets could hardly be categorized as having enough market power to burden competition. Moreover, as noted above, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes. This is in addition to free flow of order flow to and among off-exchange venues which comprised more than 40% of industry volume in recent months.
In sum, the Exchange intends for the proposed change to its credits for RPI Orders, in the aggregate, to increase member incentives to engage in the addition of liquidity on the Exchange. If the additional credit proposed herein is unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's schedule of credits, at Equity 7, Section 118(a)(1), as described further below. The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to eliminate a credit that the Exchange provides to members for displayed liquidity under Equity 7, Section 118(a)(1).
Currently, the Exchange provides a $0.0018 per share executed credit for securities in Tape C
The Exchange offers this credit as a means of improving market quality by providing its members with an incentive to increase liquidity on the Exchange. However, the Exchange has observed over time that this credit has not been successful in accomplishing its objective. That is, it has not induced members to add liquidity to the Exchange and members are not targeting this credit for growth or general use of the QDRK strategy. The Exchange has limited resources available to it to offer its members market-improving incentives, and it allocates those limited resources to those segments of the market where it perceives the need to be greatest and/or where it determines that the incentive is likely to achieve its intended objective. Accordingly, the Exchange proposes to eliminate the credit noted above.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposed change to its schedule of credits is reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for equity securities transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system
Numerous indicia demonstrate the competitive nature of this market. For example, clear substitutes to the Exchange exist in the market for equity security transaction services. The Exchange is only one of several equity venues to which market participants may direct their order flow. Competing equity exchanges offer similar tiered pricing structures to that of the Exchange, including schedules of rebates and fees that apply based upon members achieving certain volume thresholds.
Within this environment, market participants can freely and often do shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules. As such, the proposal represents a reasonable attempt by the Exchange to increase its liquidity and market share relative to its competitors.
The Exchange believes that its proposal is reasonable, equitable, and not unfairly discriminatory to eliminate the $0.0018 per share executed credit for securities in Tape C. The credit has not been effective in achieving its intended objective of incentivizing members to provide liquidity to the Exchange. The Exchange has limited resources available to it to offer its members market-improving incentives, and it allocates those limited resources to those segments of the market where it perceives the need to be greatest and/or where it determines that the incentive is likely to achieve its intended objective.
The proposal is also equitable and not unfairly discriminatory because the proposed change to the credits will apply uniformly to all similarly situated members. All market participants stand to benefit to the extent that the proposal is successful in freeing limited resources and improving market quality. Any member that is dissatisfied with the credits is free to shift their order flow to competing venues that provide more favorable rates or less stringent qualifying criteria.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that its proposal will place any category of Exchange participants at a competitive disadvantage. Members are free to trade on other venues to the extent they believe that the credits provided are not attractive or the qualifying criteria for such credits is too stringent. As one can observe by looking at any market share chart, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes.
The Exchange believes that the proposed change to its schedule of credits to eliminate the $0.0018 per share executed credit for securities in Tape C as noted above will not impose a burden on competition because the Exchange's execution services are completely voluntary and subject to extensive competition both from the other live exchanges and from off-exchange venues, which include alternative trading systems that trade national market system stock. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed change to the Exchange's credits is reflective of this competition because, as a threshold issue, the Exchange is a relatively small market so its ability to burden intermarket competition is limited. In this regard, even the largest U.S. equities exchange by volume only has 17-18% market share, which in most markets could hardly be categorized as having enough market power to burden competition. Moreover, as noted above, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes. This is in addition to free flow of order flow to and among off-exchange venues which comprises more than 40% of industry volume in recent months.
In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will either fail to increase its market share or even lose market share as a result. Accordingly, the Exchange does not believe that the proposed change will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 30, 2022, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NSCC-2022-005 (the “Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day period for Commission action on the Proposed Rule Change. The Commission finds that it is appropriate to designate a longer period within which to take action on the Proposed Rule Change so that it has sufficient time to consider and take action on the Proposed Rule Change.
Accordingly, pursuant to Section 19(b)(2) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Section 6(h) of the Act (15 U.S.C. 78f(h)) requires national securities exchanges and national securities associations that trade security futures products to establish listing standards that, among other things, require that: (i) trading in such products not be readily susceptible to price manipulation; and (ii) the market on which the security futures product trades has in place procedures to coordinate trading halts with the listing market for the security or securities underlying the security futures product. Rule 6h-1 implements these statutory requirements and requires that (1) the final settlement price for each cash-settled security futures product fairly reflect the opening price of the underlying security or securities, and (2) the exchanges and associations trading security futures products halt trading in any security futures product for as long as trading in the underlying security for trading of a security futures product based on a single security, or trading in 50% or more of the underlying securities for trading of a security futures product based on a narrow-based security index, is halted on the listing market.
It is estimated that approximately 1 respondent will incur an average burden of 10 hours per year to comply with this rule, for a total burden of 10 hours. At an average internal cost per hour of approximately $428, the resultant total internal cost of compliance for the respondents is $4,280 per year (1 respondent × 10 hours/respondent × $428/hour).
Compliance with Rule 6h-1 is mandatory. Any listing standards
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Written comments and recommendations for the proposed information collection should be sent by August 15, 2022 to (i)
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FICC is proposing to amend the GSD Methodology Document—GSD Initial Market Risk Margin Model (“QRM Methodology Document”)
In its filing with the Commission, the clearing agency 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 clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FICC is proposing to amend the QRM Methodology Document to revise the formula used to calculate the VaR Charge for repo interest volatility and make conforming changes to the description of this formula. In addition, FICC is proposing to amend the QRM Methodology Document to make certain technical changes.
FICC, through GSD, serves as a central counterparty (“CCP”) and provider of clearance and settlement services for the U.S. government securities market. A key tool that FICC uses to manage its credit exposures to its Members is the daily collection of margin from each Member. The aggregated amount of all Members' margin constitutes the Clearing Fund, which FICC would be able to access should a defaulted Member's own margin be insufficient to satisfy losses to FICC caused by the liquidation of that Member's portfolio. Each Member's margin consists of a number of applicable components, including a value-at-risk (“VaR”) charge (“VaR Charge”) designed to capture the potential market price risk associated with the securities in a Member's portfolio. The VaR Charge is typically the largest component of a Member's margin requirement. The VaR Charge is designed to cover FICC's projected liquidation losses with respect to a defaulted Member's portfolio at a 99% confidence level.
The VaR Charge includes a component that addresses repo interest volatility, which the QRM Methodology Document refers to as the “repo interest volatility charge.” Interest on a repurchase (“repo”) transaction, hereinafter referred to as “repo interest,” is the difference between the repurchase settlement amount and the start amount paid on the repo inception date. In its role as a CCP in clearing a repo transaction, FICC guarantees that the borrowers receive their repo collateral back at the close of the repo transaction while lenders receive the start amount paid on the repo inception date plus repo interest. The market value of interest payments for the remaining life of the repo trades are subject to the risk of movements of the market repo interest rates. Since FICC guarantees the repo interest payment to the lenders, this risk needs to be mitigated. The repo interest volatility charge is designed to mitigate such risk,
The QRM Methodology Document contains the formula for the calculation of the repo interest volatility charge and describes the components and calculation thereof.
Currently, the repo interest volatility charge is assessed through application of a haircut schedule with a single haircut rate applied to each risk bucket after netting short and long repo interest
In order to provide FICC with more flexibility with respect to the calculation of the repo interest volatility charge so FICC can respond to rapidly changing market conditions more quickly and timely, FICC is proposing revisions to the current formula. The proposed new formula is similar to the current formula in certain respects. For example, the proposed new formula would continue to be repo interest rate index driven and would use a similar mathematical calculation as the current formula. In addition, under the proposed new formula, the repo interest positions for a given Member portfolio would continue to be placed into risk buckets based on (a) whether the underlying repo trade is a generic repo trade or a special repo trade and (b) the time to settlement of the underlying repo trade. However, unlike the current formula, more than one repo haircut rate could apply to each risk bucket. This is because the repo haircut rate that would be applied would no longer be based on whether the total net amount for a specific risk bucket is long or short. Instead, as proposed, the specific repo haircut rate to be applied would be based on whether the individual repo interest position in a specific risk bucket is either long or short. Specifically, as proposed, FICC would apply a long repo haircut rate to all the long positions and a short repo haircut rate to all the short positions in each risk bucket. The long positions and the short positions can offset each other within the same risk bucket but cannot offset each other across different risk buckets. As proposed, the repo interest volatility charge for a specific risk bucket would be the absolute value of the sum of the product of repo start amount, time to settlement, and repo haircut rate of the individual repo interest positions in the risk bucket. However, as is the case with the current formula, the total repo interest volatility charge for the portfolio would still be the sum of the repo interest volatility charges of all of the risk buckets in the portfolio. Doing so would provide FICC the flexibility to use two haircuts for each risk bucket, one for long positions and the other for short positions,
Based on FICC's 2020 and 2021 annual model validation reports, the rolling 12-month backtest coverage on the sub-portfolios of repo interest only positions had been below the 99 percent coverage target from June 2019 to September 2020. In order to improve the backtesting coverage, FICC is also proposing to add a repo bid/ask spread to each repo haircut rate (one for long positions and one for short positions) within the same risk bucket. The repo bid/ask spread would be calculated based on the historical percentile movements of the internally constructed repo interest rate indices. FICC is proposing to add the repo bid/ask spread to each repo haircut rate to account for the difference observed in the repo market between the highest rate a repo participant is willing to pay to borrow money in a repo trade and the lowest rate a repo participant is willing to accept to lend money in a repo trade. FICC believes adding the repo bid/ask spread to each of the repo haircut rates would improve backtesting coverage, particularly with respect to sub-portfolios of repo interest only positions.
For example, assuming a portfolio contains two repo interest positions, both with half a year to settlement, one position has a repo start amount of +$1 million, and the other has a repo start amount of −$0.8 million. In this example, the two repo interest positions have the same time to settlement, so they would fall into the same risk bucket. Let's further assume that for that specific risk bucket, the long repo haircut rate is 40 bps and the short repo haircut rate is 45 bps.
Under the current formula, we first calculate the total net amount of the risk bucket by adding the product of repo start amount and the time to settlement of the two repo interest positions,
Under the proposed new formula, we would calculate the individual repo interest positions and apply the applicable repo haircut rate at the position level. Specifically, we would first calculate each repo interest position by multiplying the repo start amount and the time to settlement,
The QRM Methodology Document also contains a detailed description of the repo haircut rate calculation for all risk buckets. FICC is proposing to eliminate this detailed description from the QRM Methodology Document and replace it with a more general description of the repo haircut rate calculation. FICC believes that having a more general description would provide FICC with more flexibility to respond to rapidly changing market conditions more quickly and timely by enabling FICC to adjust how the repo haircut rate is calculated without undergoing a rule filing process.
FICC would instead describe the detailed calculations of the repo haircut rates in an internal standalone document. Nonetheless, any future changes to the repo haircut rate calculations would continue to follow DTCC's internal model governance procedure as described in the Clearing Agency Model Risk Management Framework.
Accordingly, FICC believes that revising the formula for the calculation of the repo interest volatility charge as described above and replacing the current specific description with a more general description in the QRM Methodology Document would collectively provide FICC with more flexibility and allow FICC to respond to rapidly changing market conditions more quickly by enabling FICC to adjust how the repo haircut rate is calculated without a rule filing. In addition, FICC believes that the proposed changes would enable FICC to better address the backtest coverage issue and thereby risk manage the repo interest positions more effectively.
FICC conducted an impact study for the period of January 2018 to February 2022 (“Impact Study”). The result of the Impact Study indicates that, at the CCP level, if the proposed changes had been in place, the backtesting coverage ratio for the repo interest volatility charge would have increased from approximately 98.7% to 99.2%.
Specifically, the Impact Study shows that had the proposed changes been in place from January 2018 to February 2022, it would have affected 90 out of 145 (approximately 62%) portfolios of GSD Members per day on average, and the average daily margin increase of the VaR Charge for these Member portfolios would have been approximately $0.7 million (representing approximately 3% of their average daily VaR Charge). For GSD, the proposed changes would have resulted in an average daily VaR Charge increase of approximately $86 million (representing approximately 0.8% of the average daily VaR Charge).
FICC is also proposing to make certain technical changes to the QRM Methodology Document to enhance clarity.
FICC proposes to revise the term “GCF Repo” to “repo” in “2.1 Market risks associated with products cleared by GSD” and “3.2.4 Repo Interest Volatility Charge” sections of the QRM Methodology Document for clarity.
In “2.5.4. Repo Interest Volatility Charge” and “3.2.4 Repo Interest Volatility Charge” sections of the QRM Methodology Document, FICC proposes to change “inception date” to “repo inception date” and “above” to “in the above sections” to enhance clarity. FICC also proposes to clarify and update certain descriptions in the “2.5.4. Repo Interest Volatility Charge” and “3.2.4 Repo Interest Volatility Charge” sections. For example, FICC is proposing to clarify the description of the risk that the repo interest volatility charge is designed to address and the repo trades that it applies to. In addition, FICC is proposing to update the paragraphs in “2.5.4. Repo Interest Volatility Charge” section describing the use of risk buckets to reflect the current practice.
Furthermore, FICC proposes to change “repurchase price” to “repurchase settlement amount” and “original sale price” to “start amount paid on the repo inception date” in “3.2.4 Repo Interest Volatility Charge” section for clarity. To enhance the clarity of the QRM Methodology Document, FICC also proposes to remove a formula from
In addition, FICC is proposing to clarify the description of the repo interest curve in “3.2.4 Repo Interest Volatility Charge” section of the QRM Methodology Document, including, among other things, the description the categories that a collateral security in a repo trade can be designated as and how those categories are treated in the repo interest volatility charge calculation, as well as how the repo rate indices are constructed. FICC also proposes to add that any changes or adjustments to the repo haircut rate calculation would need to go through DTCC's model governance process.
Lastly, FICC is proposing certain grammar-related technical changes in “2.1 Market risks associated with products cleared by GSD” and “3.2.4 Repo Interest Volatility Charge” sections of the QRM Methodology Document.
Subject to approval by the Commission, FICC would implement the proposed rule changes approximately within 30 days following such approval and would announce the effective date of the proposed change by an Important Notice posted to its website.
FICC believes this proposal is consistent with the requirements of the Act, and the rules and regulations thereunder applicable to a registered clearing agency. Specifically, FICC believes that the proposed changes to the Rules and the QRM Methodology Document described above are consistent with Section 17A(b)(3)(F) of the Act, for the reasons described below.
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of a clearing agency be designed to assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible.
FICC believes that the proposed changes to the QRM Methodology Document described in Item II.(A)1(1) above to revise the formula used to calculate the VaR Charge for repo interest volatility and make conforming changes to the description of this formula are designed to assure the safeguarding of securities and funds which are in the custody or control of FICC or for which it is responsible, consistent with Section 17A(b)(3)(F) of the Act.
FICC believes that the proposed technical changes described in Item II.(A)1(2) above would enhance the clarity of the QRM Methodology Document for FICC. As the QRM Methodology Document is used by FICC Risk Management personnel regarding the calculation of margin requirements, it is therefore important that FICC Risk Management has a clear description of the calculation of the margin methodology. Having a clear description of the calculation of the margin methodology would promote an accurate and smooth functioning of the margining process. Having an accurate and smooth functioning of the margining process would help better ensure that FICC calculates and collects adequate margin from Members and thereby assure the safeguarding of securities and funds which are in the custody and control of FICC or for which it is responsible. As such, FICC believes that enhancing the clarity of the QRM Methodology Document would assure the safeguarding of securities and funds which are in the custody or control of FICC or for which it is responsible, consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad-22(e)(4)(i) under the Act
Rule 17Ad-22(e)(6)(i) under the Act
Specifically, FICC believes the proposed new formula to allow FICC the flexibility to apply two separate repo haircut rates (one for long positions and the other for short positions) within the same risk bucket would enable FICC to be better equipped to respond to rapidly changing market conditions,
Similarly, FICC believes that the proposed changes to replace the current detailed description of the repo haircut rate calculation for all risk buckets with a more general description, as described above, would also provide FICC with more flexibility to respond to rapidly changing market conditions more quickly and timely because FICC would be able to make adjustments to the repo haircut rate calculation without a rule filing. Having this flexibility would enable FICC to better risk manage the repo interest positions because FICC would then be able to make appropriate and timely adjustments to the repo haircut rates, as described above. Furthermore, as described above, FICC believes these proposed changes would also help counterbalance potential data availability limitation issues by enabling FICC to adjust how the repo haircut rate is calculated more quickly and timely. Being able to adjust its calculation of the repo haircut rate quickly and timely would help FICC cover its credit exposures to its participants by allowing FICC to continue to produce margin levels commensurate with the risks and particular attributes of each relevant product, portfolio, and market. Therefore, FICC believes this proposed change is consistent with Rule 17Ad-22(e)(6)(i) under the Act.
Rule 17Ad-22(e)(6)(v) under the Act
Specifically, FICC believes the proposed new formula to allow FICC the flexibility to apply two separate repo haircut rates (one for long positions and the other for short positions) within the same risk bucket would enable FICC to be better equipped to respond to rapidly changing market conditions, particularly when the long and short repo interest positions exhibit very different risk profiles. FICC believes having this flexibility would help lead to a better risk management practice because it would enable FICC to refine its calculation of the repo interest volatility charge in response to fast changing market conditions. Being able to refine its calculation of the repo interest volatility charge in response to fast changing market conditions would help FICC cover its credit exposures to its participants by allowing FICC to continue to produce margin levels commensurate with relevant product risk factors and portfolio effects across products. Therefore, FICC believes this proposed change is consistent with Rule 17Ad-22(e)(6)(v) under the Act.
Similarly, FICC believes that the proposed changes to replace the current detailed description of the repo haircut rate calculation for all risk buckets with a more general description, as described above, would also provide FICC with more flexibility to respond to rapidly changing market conditions more quickly and timely because FICC would be able to make adjustments to the repo haircut rate calculation without a rule filing. Having this flexibility would enable FICC to better risk manage the repo interest positions because FICC would then be able to make appropriate and timely adjustments to the repo haircut rates, as described above. Furthermore, as described above, FICC believes these proposed changes would also help counterbalance potential data availability limitation issues by enabling FICC to adjust how the repo haircut rate is calculated more quickly and timely. Being able to adjust its calculation of the repo haircut rate quickly and timely would help FICC cover its credit exposures to its participants by allowing FICC to continue to product margin levels commensurate with relevant product risk factors and portfolio effects across products. Therefore, FICC believes this proposed change is consistent with Rule 17Ad-22(e)(6)(v) under the Act.
FICC believes that the proposed changes described in Item II.(A)1(1) above may have an impact on competition because these changes could result in Members being assessed a higher margin than they would have been assessed using the current formula in calculation of the repo interest volatility charge. FICC believes that the proposed change could burden competition by potentially increasing these Members' operating costs. Nonetheless, FICC believes any burden on competition imposed by the proposed changes described in Item II.(A)1(1) would not be significant and, regardless of whether such burden on competition could be deemed significant, would be necessary and appropriate, as permitted by Section 17A(b)(3)(I) of the Act for the reasons described in this filing and further below.
FICC believes any burden on competition imposed by the proposed changes described in Item II.(A)1(1) would not be significant. As the result of the Impact Study indicates, had the proposed changes been in place, approximately 62% of the GSD Member portfolios would have had an increase of approximately 3% in their average daily VaR Charge, and at a GSD level the increase would have been approximately 0.8% of the average daily VaR Charge.
However, even if the burden on competition imposed by the proposed changes described in Item II.(A)1(1) were deemed significant, FICC believes that any such burden on competition would be necessary because, as described above, the proposed changes would provide FICC with more flexibility with respect to the calculation of the repo interest volatility charge and allow FICC to respond to rapidly changing market conditions more quickly and timely, particularly when the long and short repo interest positions exhibit very different risk profiles. Having more flexibility with respect to this calculation would thus help better ensure that FICC calculates and collects adequate margin from Members and thereby assure the safeguarding of securities and funds which are in the custody and control of FICC or for which it is responsible,
In addition, FICC believes the proposed changes described in Item II.(A)1(1) are necessary to support FICC's compliance with Rules 17ad-22(e)(4)(i), (e)(6)(i), and (e)(6)(v) under the Act. Specifically, as described above, FICC believes these proposed changes would provide FICC with more flexibility with respect to the calculation of the repo interest volatility charge. Having more flexibility with respect to the calculation of the repo interest volatility charge would allow FICC to respond to rapidly changing market conditions more quickly and timely. Having the ability to respond to rapidly changing market conditions more quickly and timely would in turn help FICC better measure, monitor, and manage its credit exposures to participants and those exposures arising from its payment, clearing, and settlement processes, consistent with the requirements of Rules 17ad-22(e)(4)(i) under the Act.
FICC also believes these proposed changes would enable FICC to be better equipped to respond to rapidly changing market conditions, particularly when the long and short repo interest positions exhibit very different risk profiles. FICC believes having this flexibility would help lead to a better risk management practice because it would enable FICC to refine its calculation of the repo interest volatility charge in response to fast changing market conditions. Being able to refine its calculation of the repo interest volatility charge in response to fast changing market conditions would help FICC cover its credit exposures to its participants, consistent with the requirements of Rule 17Ad-22(e)(6)(i) and (e)(6)(v) under the Act.
FICC also believes that any burden on competition imposed by the proposed changes described in Item II.(A)1(1) would be appropriate in furtherance of the Act because these proposed changes have been specifically designed to assure the safeguarding of securities and funds which are in the custody and control of FICC or for which it is responsible, as required by Section 17A(b)(3)(F) of the Act. As described above, FICC believes these proposed changes would help better ensure that FICC calculates and collects adequate margin from Member, thus enable FICC to produce margin levels more commensurate with the risks it faces as a CCP. Accordingly, FICC believes these proposed changes are appropriately designed to meet its risk management goals and regulatory obligations.
FICC believes that the proposed changes described in Item II.(A)1(1) above may also promote competition because these changes could also result in Members being assessed a lower margin than they would have been assessed using the current calculation of the repo interest volatility charge, and thereby could potentially lower operating costs for Members.
With respect to the proposed changes described in Item II.(A)1(2) above to make technical changes to the QRM Methodology Document, FICC does not believe these proposed changes would have any impact on competition because these proposed changes would only enhance the clarity of the QRM Methodology Document, which would promote an accurate and smooth functioning of the margining process at FICC and would not affect the substantive rights of Members.
FICC has not received or solicited any written comments relating to this proposal. If any additional written comments are received, they will be publicly filed as an Exhibit 2 to this filing, as required by Form 19b-4 and the General Instructions thereto.
Persons submitting comments are cautioned that, according to Section IV (Solicitation of Comments) of the Exhibit 1A in the General Instructions to Form 19b-4, the Commission does not edit personal identifying information from comment submissions. Commenters should submit only information that they wish to make available publicly, including their name, email address, and any other identifying information.
All prospective commenters should follow the Commission's instructions on how to submit comments,
FICC reserves the right not to respond to any comments received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 13, 2022, Cboe BZX Exchange, Inc. (“BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised therein. Accordingly, 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 principal purpose of the proposed rule change is to revise the ICC Risk Management Framework (“RMF”) and the ICC Risk Management Model Description (“RMMD”) (collectively, the “Risk Management Policies”). These revisions do not require any changes to the ICC Clearing Rules (the “Rules”).
In its filing with the Commission, ICC included statements concerning the purpose of and basis for the proposed rule change, security-based swap submission, or advance notice and discussed any comments it received on the proposed rule change, security-based swap submission, or advance notice. The text of these statements may be examined at the places specified in Item IV below. ICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
ICC proposes revisions to the Risk Management Policies. The proposed amendments consist of clarifications that are intended to promote consistency across related provisions in ICC's Rules and procedures and would not change any current risk methodologies, practices, or requirements. ICC believes the proposed changes will facilitate the prompt and accurate clearance and settlement of securities transactions and derivative agreements, contracts, and transactions for which it is responsible. ICC proposes to make such changes effective shortly after filing with the Commission, on or about July 18, 2022. The proposed rule change is described in detail as follows.
ICC proposes language clarifications to the Risk Management Policies to ensure consistency with the ICC Rules. Under ICC Rule 801(a)(ii), the required contribution to the Guaranty Fund
ICC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
The proposed rule change is limited to language clarifications designed to promote consistency across related provisions in ICC's Rules and procedures. Namely, the proposed changes incorporate the “increase of 5% or more” language from ICC Rule 801(a)(ii) in related provisions in the RMF and RMMD to ensure that language in these documents clearly reflects ICC's current practices. The amendments would not change current risk methodologies, practices, or requirements. These amendments strengthen the Risk Management Policies as they provide clarity with respect to current practices to ensure that the RMF and RMMD remain up-to-date, transparent, and effective. Such changes also promote readability and understanding regarding current provisions associated with GF calls, thereby promoting the successful maintenance and operation of the Risk Management Policies. Accordingly, in ICC's view, the proposed rule change is consistent with the prompt and accurate clearance and settlement of securities transactions, derivatives agreements, contracts, and transactions, the safeguarding of securities and funds in the custody or control of ICC or for which it is responsible, and the protection of investors and the public interest, within the meaning of Section 17A(b)(3)(F) of the Act.
The amendments would also satisfy relevant requirements of Rule 17Ad-22.
Rule 17Ad-22(e)(4)(ii)
Rule 17Ad-22(e)(6)(i)
ICC does not believe the proposed rule change would have any impact, or impose any burden, on competition. The proposed changes to the Risk Management Policies will apply uniformly across all market participants. They are limited to language
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f) of Rule 19b-4 thereunder. 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.
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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICC-2022-009 and should be submitted on or before August 5, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 17, 2021, Cboe EDGA Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
30-Day Notice.
The Small Business Administration (SBA) is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act and OMB procedures, SBA is publishing this notice to allow all interested member of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before August 15, 2022.
Written comments and recommendations for this information collection request should be sent within 30 days of publication of this notice to
You may obtain a copy of the information collection and supporting documents from the Agency Clearance Office at
SBA received funds under the American Rescue Plan Act of 2021 (ARP Act), Public Law 117-2, title V, sec. 5003 (March 11, 2021), to provide direct funds to Eating and Drinking establishments that meet certain conditions. Specifically, Section 5003 of the ARP Act establishes the Restaurant Revitalization Fund (RRF) program to provide direct funds of up to $10 million dollars and limited to $5 million dollars per location to certain eligible persons or entities: a restaurant, food stand, food truck, food cart, caterer, saloon, inn, tavern, bar, lounge, brewpub, tasting room, taproom, licensed facility or premise of a beverage alcohol producer where the public may taste, sample, or purchase products, or other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink. Section 5003(c)(6) of the ARP Act, SBA requires RRF recipients to submit post award reports to confirm that funds are used fully and in accordance with program requirements. Section 5003(c)(6) of the ARP Act also requires recipients to return to the Treasury any funds that the recipient did not use for allowable expenses by the end of the covered period, or if the recipient permanently ceased operations, not later than March 11, 2023.
Comments may be submitted on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of SOUTH DAKOTA (FEMA-4656-DR), dated 06/29/2022.
Issued on 06/29/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 06/29/2022, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17518 B and for economic injury is 17519 0.
60-Day notice and request for comments.
The Small Business Administration (SBA) plans to seek approval from the Office of Management
Submit comments on or before September 13, 2022.
JoAnn Braxton, Office of Entrepreneurial Development, 409 3rd St. SW, 6th Floor, Washington, DC 20416, or Curtis B. Rich, Management Analyst, 202-205-7030,
This is a request for revisions of an approved collection (OMB number: 3245-0394). The SBA Emerging Leaders (EL) initiative was designed to strengthen and grow existing local entrepreneur communities in historically distressed cities. The key goals of the program are to (1) increase small business growth and survival, and (2) promote economic growth in distressed communities by providing employment opportunities as well as necessary goods and services. To achieve these goals, the program offers executives of high‐growth small businesses a five‐month executive leader education series, free of charge, that provide the networks, resources, and knowledge required to promote a sustainable business growth, create jobs, and contribute to the economic well‐being of local communities. In 2022, the program was revamped under the new name, T.H.R.I.V.E. Emerging Leaders Reimagined. The revised program provides training that customizes content for small businesses' unique needs, increases accessibility through a virtual component, and specifically promotes business ecosystem connections among business owners, government agencies, and the financial community. This information collection is necessary for SBA to understand the progress made by the T.H.R.I.V.E. program toward achieving its goals.
The evaluation will be used to track participants' business growth, to provide guidance to the program training contractor on areas for additional assistance, and to increase SBA's understanding of the program outcome trends. This evaluation aims to examine the program participants' business growth outcomes including revenue, profits, job creation, and business survival. The evaluation also describes the population of program participants—their businesses, business management practices, experiences with the program, and satisfaction with and perceived effectiveness of the program. Over the previous years, the evaluation results have helped to track the program performance outcomes and provide suggestions for program improvements to better facilitate small business growth. The results are also expected to provide suggestions for improving future evaluations.
The following surveys are conducted with the program participants: (1) the application form before the program enrollment, (2) the intake survey before the training, (3) the module feedback form during the training, (4) the feedback survey right after the graduation, and (5) the follow-up survey annually up to three years after graduation. The application form examines the eligibility status of the enrollees, obtains their contact information, and asks for their business goals. The data from the Intake survey is used to determine baseline levels of business outcomes, the use of management practices, and the extent to which the target population for the program is reached. The module feedback form assesses the participants' experience with each of the eight modules of the training program. The feedback survey is used to measure participant satisfaction with the training activities and to suggest training adjustments, if necessary. The annual follow-up survey tracks changes in the small business owner's management practices and business outcomes for three years after graduation from the program. The data collection covers four cohorts of program participants. The given year participants complete the application form, intake survey, module feedback, and feedback survey. The three cohorts of participants who graduated from the program one, two, and three years prior complete the follow-up survey.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of MINNESOTA (FEMA-4658-DR), dated 07/08/2022.
Issued on 07/08/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 07/08/2022, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17520 B and for economic injury is 17521 0.
60-Day notice and request for comments.
The Small Business Administration (SBA) plans to seek approval from the Office of Management and Budget (OMB) to conduct the data collection activities described below. The Paperwork Reduction Act requires federal agencies to publish a notice in the
Submit comments on or before September 13, 2022.
Send all comments to Philip T. Gibson; Office of Entrepreneurship Education;
Philip T. Gibson; Office of Entrepreneurship Education;
This is a request for a revision of a currently approved collection (OMB number: 3245-0392). Through the RIC initiative, SBA is investing in regional clusters—geographic concentrations of interconnected companies, specialized suppliers, academic institutions, service providers, and associated organizations with a specific industry focus—throughout the United States that span a variety of industries. The three primary goals of the initiative are to (1) increase opportunities for small business participation within clusters, (2) promote innovation in the industries on which the clusters are focused, and (3) enhance economic development and growth in cluster regions. To achieve these goals, the clusters provide a host of services to the target population of small and emerging businesses within their regional and industry focuses. Services include direct business advising and support and sponsoring events, such as networking opportunities with investors, large businesses and other stakeholders in the regions. This information collection is necessary for SBA to understand the progress of the RIC initiative toward achieving its goals.
The evaluation consists of two key components: an implementation evaluation and an outcome evaluation. The implementation evaluation focuses on how the Initiative is implemented across the 12 clusters and on the services that each cluster provides to its small businesses. The outcome evaluation focuses on short- and intermediate-term outcomes linked directly to the cluster services, as well as on long-term business outcomes that can be reasonably expected to result from the short- and intermediate-term outcomes. The short-term outcomes include the satisfaction and the perceived effectiveness of the program for business management and growth. The intermediate outcomes include development of new products, commercialization of new technologies, marketing and export services, improved access to capital, and industry integration. Long-term outcomes include increased revenue and employment. Over the previous years, evaluation results have helped to track the program performance outcomes and provide suggestions for program improvements to better facilitate innovation and small business growth. Furthermore, the evaluation survey data helped the SBA to better focus cluster activities on local contexts, particularly for rural and agricultural small businesses. This data will not be used to evaluate the effectiveness of an individual cluster.
The data collection effort involves three types of RIC initiative stakeholders: small businesses, large organizations, and cluster administrators. Small businesses participating in the cluster will be sent an online survey to provide data about their cluster participation experiences, satisfaction with the program and its components, the performance of their firms with respect to a variety of outcomes, and the role of cluster participation in the achievement of these outcomes. Similarly, large organizations—a broad group that includes universities, public sector agencies, nonprofit organizations, and business associations—will be asked to complete an online survey to provide data about their experiences with the RIC Initiative. The questions include reasons for the RIC participation, collaboration with and support for small businesses, and the role of cluster participation on key organizational outcomes associated with the RIC participation. The RIC administrators will be asked to complete a survey that provides the framework of the surveys that the small business and large organizations are sent. The administrator survey requests information about the services they provided to these two groups of stakeholders, and their operations in general. Cluster administrators will also be interviewed once a year to obtain information about how their operations have evolved, the adjustments they made, best practices, issues encountered, and the lessons learned.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “The Space Between: The Modern in Korean Art” at the Los Angeles County Museum of Art, Los Angeles, California, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
SMS Rail Service, Inc. (SMS), a Class III rail carrier, has filed a verified notice of exemption
According to the verified notice, SMS has entered into an agreement with the County to provide exclusive rail service over the Line, and JP Rail has consented to the proposed change in operators and discontinuance of its operating authority.
As required under 49 CFR 1150.43(h), SMS certifies that the proposed transaction does not involve a provision or agreement that may limit future interchange with a third-party connecting carrier.
SMS certifies that its projected revenues as a result of the transaction will not result in the creation of a Class I or Class II rail carrier but also states that its annual revenues will exceed $5 million following the transaction. Pursuant to 49 CFR 1150.42(e), if a carrier's projected revenues will exceed $5 million, it must, at least 60 days before the exemption becomes effective, post a notice of its intent to undertake the proposed transaction at the workplace of the employees on the affected lines, serve a copy of the notice on the national offices of the labor unions with employees on the affected lines, and certify to the Board that it has done so. SMS states that it complied with the advance notice posting requirements of 49 CFR 1150.42(e) on June 29, 2022, and that SMS has been advised that no labor union represents JP Rail employees.
Under 49 CFR 1150.42(b), a change in operator exemption requires that notice be given to shippers. SMS certifies that it has provided notice of the proposed change in operator to the sole shipper on the Line.
The transaction may be consummated on or after August 28, 2022, the effective date of the exemption (60 days after SMS's certification under 49 CFR 1150.42(e)).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than August 19, 2022 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36529, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on SMS's representative, Robert A. Klein, Berkowitz Klein, LLP, 629 B Swedesford Road, Swedesford Corporate Center, Malvern, PA 19355-1530.
According to SMS, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
OmniTRAX Holdings Combined, Inc. (OmniTRAX), and HGS Railway Holdings, Inc. (HGS) (collectively, Omni-HGS), both noncarriers, have filed a verified notice of exemption under 49 CFR 1180.2(d)(2) to continue in control of Omni River Ridge, LLC d/b/a River Ridge Railroad (RRR), a noncarrier controlled by OmniTRAX, upon RRR's becoming a Class III rail carrier.
This transaction is related to a verified notice of exemption filed concurrently in
Omni-HGS states that it will continue in control of RRR upon RRRs becoming a railroad common carrier. According to the verified notice, OmniTRAX and HGS are under joint managerial and operational control. OmniTRAX currently controls 20 Class III rail carriers: Alabama & Tennessee River Railway, LLC; Brownsville & Rio Grande International Railway, LLC; Central Texas & Colorado River Railway, LLC; Chicago Rail Link, L.L.C.; Cleveland & Cuyahoga Railway, LLC; Fulton County Railway, LLC; Georgia & Florida Railway, LLC; Georgia Woodlands Railroad, L.L.C.; Great Western Railway of Colorado, L.L.C.; Illinois Railway, LLC; Kettle Falls International Railway, LLC; Manufacturers' Junction Railway, L.L.C.; Nebraska, Kansas and Colorado Railway, LLC; The Newburgh & South Shore Railroad, LLC; Northern Ohio & Western Railway, L.L.C.; Panhandle Northern Railroad, L.L.C.; Peru Industrial Railroad, LLC; Sand Springs Railway Company; Stockton Terminal and Eastern Railroad; and The Winchester and Western Railroad Company. HGS controls two Class III railroads: HGS-ATN, LLC; and HGS-FCR, LLC.
Omni-HGS represents that: (1) the rail line to be operated by RRR does not connect with the rail lines of any of the rail carriers controlled by Omni-HGS;
The transaction may be consummated on or after July 29, 2022, the effective date of the exemption (30 days after the verified notice was filed).
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) does not provide for labor protection for transactions under 49 U.S.C. 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
If the verified notice contains false or misleading information, the exemption void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than July 22, 2022 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36626, must be filed with the Surface Transportation Board via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Omni-HGS's representative, Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208.
According to Omni-HGS, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Omni River Ridge, LLC d/b/a River Ridge Railroad (RRR), a noncarrier controlled by short line holding company OmniTRAX Holdings Combined, Inc.
(OmniTRAX) has filed a verified notice of exemption pursuant to 49 CFR 1150.31 to operate a segment of track that extends from a point of connection with a line of CSX Transportation, Inc., Hoosier Subdivision, Branch NABB BR, at milepost B 0041.950 at Charlestown, Ind., roughly southward for 4,980 feet to the north end of the wye track (proximate to Patrol Road), a distance of approximately 0.943 miles in Clark County, Ind. (the Line).
This transaction is related to a concurrently filed verified notice of exemption in
According to the verified notice, the Line was historically used for non-common carrier railroad purposes. RRR states that it has acquired the title to the assets that comprise the Line and seeks Board authorization to initiate railroad common carrier operations over the Line.
RRR states that the proposed transaction does not involve any provision or agreement that would limit future interchange on the Line with a third-party connecting carrier. RRR certifies that its projected annual revenue will not exceed $5 million and that the proposed transaction will not result in RRR's becoming a Class I or II rail carrier.
The earliest this transaction may be consummated is July 29, 2022, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d)
All pleadings, referring to Docket No. FD 36625, must be filed with the Surface Transportation Board via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on RRR's representative, Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208.
According to RRR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Federal Aviation Administration (FAA), Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves information collected which will be used by air carriers and by the FAA to adequately target its inspection resources for surveillance, and make accurate risk assessments.
Written comments should be submitted by September 13, 2022.
Please send written comments:
Jim Anderson by email at:
The FAA has found that, although an air carrier is required to list its maintenance providers and a general description of the work to be done in its maintenance manual, these lists are not always kept up to date, are not always complete, and are not always in a format that is readily useful for FAA oversight and analysis purposes. Without accurate and complete information on the work being performed for air carriers, the FAA cannot adequately target its inspection resources for surveillance and make accurate risk assessments.
This collection of information supports regulatory requirements necessary under 14 CFR part 121 and part 135 to ensure safety of flight by requiring air carriers to provide a list that includes the name and physical (street) address, or addresses, where the work is carried out for each maintenance provider that performs work for the certificate holder, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location. The list must be updated with any changes, including additions or deletions, and the updated list provided to the FAA in a format acceptable to the FAA by the last day of each calendar month.
This collection also supports the FAA's strategic goal to provide to the next level of safety, by achieving the lowest possible accident rate and always improving safety, so all users of our aviation system can arrive safely at their destinations.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that on June 24, 2022, twenty host railroads submitted a joint request for amendment (RFA) to their FRA-approved Positive Train Control Safety Plans (PTCSP). As this joint RFA may involve requests for FRA's approval of proposed material modifications to FRA-certified positive train control (PTC) systems, FRA is publishing this notice and inviting public comment on railroads' joint RFA to their PTCSPs.
FRA will consider comments received by August 1, 2022. FRA may consider comments received after that date to the extent practicable and without delaying implementation of
Gabe Neal, Deputy Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, Title 49 United States Code (U.S.C.) Section 20157(h) requires FRA to certify that a host railroad's PTC system complies with Title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTCSP, a host railroad must submit, and obtain FRA's approval of, an RFA to its PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
On June 24, 2022, in response to FRA comments, the following 20 host railroads jointly submitted an RFA to their respective PTCSPs for their Interoperable Electronic Train Management Systems: Alaska Railroad Corporation, The Belt Railway Company of Chicago, BNSF Railway, Caltrain, Canadian National Railway, Canadian Pacific Railway, Consolidated Rail Corporation (Conrail), CSX Transportation, Inc., Kansas City Southern Railway, Kansas City Terminal Railway, National Passenger Railroad Corporation (Amtrak), New Mexico Rail Runner Express, Norfolk Southern Railway, North County Transit District, Northeast Illinois Regional Commuter Railroad Corporation (Metra), Northern Indiana Commuter Transportation District, South Florida Regional Transportation Authority, Southern California Regional Rail Authority (Metrolink), Terminal Railroad Association of St. Louis, and Union Pacific Railroad. Their joint RFA is available in Docket Numbers FRA-2010-0028, -0029, -0039, -0042, -0043, -0045, -0048, -0049, -0051, -0054, -0056, -0057, -0058, -0059, -0060, -0061, -0062, -0064, -0065, and -0070. Interested parties are invited to comment on this RFA by submitting written comments or data. During FRA's review of these railroads' joint RFA, FRA will consider any comments or data submitted within the timeline specified in this notice and to the extent practicable, without delaying implementation of valuable or necessary modifications to PTC systems.
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Federal Transit Administration, United States Department of Transportation (DOT).
Notice; request for comments.
This notice provides information on proposed changes and clarifications to the National Transit Database (NTD) Safety and Security (S&S) reporting requirements. Some of the proposed NTD changes would take place during the NTD report year (RY) 2023, which corresponds to an agency's fiscal year, while other changes will take place during calendar year (CY) 2023.
Comments are due by September 13, 2022. The Federal Transit Administration (FTA) will consider late comments to the extent practicable.
You may file comments identified by docket number FTA-2022-0020 by any of the following methods:
•
•
•
•
Thomas Coleman, National Transit Database Program Manager, FTA Office of Budget and Policy, (202) 366-5333,
The National Transit Database (NTD) was established by Congress to be the Nation's primary source for information and statistics on the transit systems of the United States. Recipients and beneficiaries of Federal Transit Administration (FTA) grants under either the Urbanized Area Formula Program (49 U.S.C. 5307) or Rural Area Formula Program (49 U.S.C. 5311) are required by law to report to the NTD. FTA grantees that own, operate, or manage transit capital assets are required to provide more limited reports to the NTD regarding Transit Asset Management.
Pursuant to 49 U.S.C. 5334(k), FTA is seeking public comment on proposed NTD S&S reporting changes and clarifications. These proposals implement changes to Federal transportation law made by the Bipartisan Infrastructure Law, enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117-58). FTA is proposing changes and clarifications on two topics: (1) assaults on a transit worker; and (2) fatalities that result from an impact with a bus. FTA seeks comments on the proposed changes and clarifications described below. The information below describes anticipated reporting impacts from each change or clarification, as well as the proposed effective date of each change. All impacts or changes described below are proposed and subject to finalization in a future notice.
The Bipartisan Infrastructure Law amended 49 U.S.C. 5335(c) to require that recipients of a grant under Chapter 53 submit to the NTD “any data on assaults on transit workers of the recipients.” The Bipartisan Infrastructure Law amended 49 U.S.C. 5302(1) to define “assault on a transit worker:”
[A] circumstance in which an individual knowingly, without lawful authority or permission, and with intent to endanger the safety of any individual, or with a reckless disregard for the safety of human life, interferes with, disables, or incapacitates a transit worker while the transit worker is performing the duties of the transit worker.
FTA will incorporate this definition into NTD reporting without change. Because FTA is adopting the statutory language verbatim, FTA is not seeking comment on the definition of “assault on a transit worker.” FTA is proposing to define “transit worker” as: “any employee, contractor, or volunteer working on behalf of the transit agency.”
To maintain consistency between this definition and the statutory definition of “assault on a transit worker,” FTA proposes to amend the definition of “assault” to: “an attack by one person on another without lawful authority or permission.” This will represent a change for the NTD program. Currently, the NTD Safety and Security Policy Manual defines “assault” as an “unlawful attack by one person upon another” for the “Major Event Report” (S&S-40) form.
Section 49 U.S.C. 5335(c) applies to “each recipient of a grant” under Chapter 53. Within this scope, FTA identified three different affected reporting groups: (1) full reporters; (2) reduced, tribal, and rural reporters; and (3) capital asset-only reporters. FTA proposes different ways to collect this data, depending on the reporter type as described below.
FTA proposes that full reporters to the NTD report all assaults on transit workers on either the S&S-40 or S&S-50 (“Non-Major Summary Report”) forms. The S&S-40 captures safety and security “major event” reports such as fatalities. The S&S-50 collects monthly counts from full reporters related to `non-major' events. An assault on a transit worker is already required to be reported on the S&S-40 form if it meets one of the FTA's major event reporting thresholds listed in the NTD safety and security manual.
The S&S-40 form is detailed, requiring one unique report per event. FTA proposes adding two new questions on the S&S-40 if the event is an assault or a homicide. The first proposed question asks reporters to identify whether assault or homicide events were against operators, other transit workers, or someone else. If the first question indicates an assault against an operator or other transit worker occurred, a second proposed question asks whether the assault was physical or non-physical, which are defined as follows:
•
•
FTA proposes to require that any assault on a transit worker that is not reported on the S&S-40 must be reported on the S&S-50 form. Currently, the S&S-50 does not identify which non-major events involved assaults. FTA proposes to add a four-by-four matrix with sixteen fields to the S&S-50 to collect counts related to assaults on a transit worker. The matrix will ask for counts to be distinguished based on whether the assaults were physical or non-physical, whether they were assaults on operators or on other transit workers, and whether the assaults occurred in a transit vehicle, a revenue facility, a non-revenue facility, or some other location.
The following table identifies the 16 proposed S&S-50 questions:
FTA considered proposing an alternative reporting option for full reporters where any assault on a transit worker would require an S&S-40 report. This alternative would have created an additional major event reporting threshold for the S&S-40. Under this alternative, no assaults on transit workers would be reportable on the S&S-50, even if no other major event reporting threshold was met. FTA did not select this alternative as FTA believes it would be substantially more burdensome on agencies because the S&S-40 report requires one report per event, while the S&S-50 requires only a monthly summary tally. FTA proposes that reporting for transit worker assault data on the S&S-40 and S&S-50 begin in calendar year 2023 as soon as practicable following publication of the
FTA proposes that reduced, tribal, and rural reporters must begin reporting assaults on transit workers on a new annual form (S&S-60). Reduced and rural reporter types already report safety data on the RR-20 form.
At present, the NTD asks three safety questions on the RR-20 form: total fatalities from the prior year, total injuries from the prior year, and total events from the prior year. FTA proposes to remove these questions from the RR-20 form and transfer them to the new S&S-60 form. Additionally, FTA proposes asking these reporters to report transit worker assault data using matrix format. Mock-ups of a matrix for physical and non-physical assaults are shown below:
The proposed S&S-60 form will collect data that is similar to the data captured from full reporters on both the S&S-40 and S&S-50 forms. This would facilitate consistent data collection from all reporters. The proposed S&S-60 questions are intended to provide annual counts of where transit worker assaults occurred, whether assaults were against operators or other transit workers, whether the assaults were physical or non-physical, whether the events were major or non-major (consistent with the S&S-40 and S&S-50 definitions), and counts of affected person-type(s). FTA proposes that reporting for transit worker assault data on the S&S-60 begin in RY 2023.
FTA considered two alternative reporting options for reduced, tribal, and rural reporters. FTA considered an option that would require an S&S-40 report for any assault on a transit worker. FTA did not select this approach as it FTA believes it would be substantially more burdensome on agencies as the S&S-40 report requires one report per event, while the S&S-60 is a monthly summary tally.
FTA also considered an option where the S&S-60 would only ask for a total tally of all annual transit worker assaults as opposed to the counts of transit worker assaults by location, major vs. non-major assault, etc. FTA did not select this proposal as it would not make the data useful to understand risk trends. For instance, risk trends change by location—transit worker assaults rates may be higher in revenue vehicles as opposed to in revenue facilities, and understanding this data is critical to identifying potential mitigations. Thus, it was determined collecting only a total tally of all annual transit worker assaults would not provide useful data.
FTA proposes that capital asset-only reporters must begin reporting
FTA also considered an option where the S&S-60 would ask for a single total tally of all transit worker assaults as opposed to collecting the counts of transit worker assaults by location, major vs. non-major assault, etc. FTA did not select this proposal as it would not make the data useful to understand risk trends. For instance, risk trends change by location—transit worker assaults rates may be higher in revenue vehicles as opposed to in revenue facilities, and understanding this data is critical to identifying potential mitigations. Thus, it was determined collecting only a total tally of all annual transit worker assaults would not provide useful data.
The Bipartisan Infrastructure Law also amended 49 U.S.C. 5335(c) to require “each recipient of a grant” under Chapter 53 to report “any data on fatalities that result from an impact with a bus.” Within this scope, FTA identified three different affected reporting groups: (1) full reporters; (2) reduced, tribal, and rural reporters; and (3) capital asset-only reporters. FTA proposes different ways to collect this data, depending on the reporter type as described below.
Full NTD reporters already report all fatalities that result from an impact with a bus to the NTD because all events that result in a fatality, including those from an impact (or “collision”) with a bus, must be reported on the S&S-40 form.
Because 49 U.S.C. 5335(c) applies to all Chapter 53 recipients, FTA proposes to collect bus fatality collision data from rural, reduced, and tribal reporters on the new S&S-60 form. The RR-20 form currently collects summary annual fatality data from these reporters. However, the form combines fatality counts of all types, making fatalities that result from an impact with a bus indistinguishable from other fatalities. The RR-20 also does not distinguish major events from non-major events.
As discussed above, FTA is proposing to remove the safety-related questions from the RR-20 form and add them to the new S&S-60 form. FTA is proposing to add eleven questions on a matrix in the S&S-60. The proposed form will delineate collisions with pedestrians and vehicles, as well as major from non-major events. FTA proposes that these changes take effect in RY 2023. The proposed matrix is shown below:
FTA also considered an alternative reporting option for reduced, tribal, and rural reporters where all fatalities that result from an impact with a bus would require an S&S-40 report. FTA did not select this approach as FTA believes it would be substantially more burdensome on agencies as the S&S-40 report requires a report per event, while the S&S-60 is a monthly summary tally.
FTA proposes that capital asset-only reporters must begin reporting data on fatalities that result from an impact with a bus on a new annual form (S&S-60). The S&S-60, which will replace the major event, fatality, and injury questions on the RR-20, currently does not apply to capital asset-only reporters. The relevant section of the S&S-60 is shown above, and asks for counts of major events, fatalities, and injuries.
FTA also considered an alternative reporting option for capital asset-only reporters where any fatality that resulted from an impact with a bus would require an S&S-40 report. FTA did not select this approach as FTA believes it would be substantially more burdensome on agencies as the S&S-40 report requires a report per event, while the S&S-60 is a monthly summary tally.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of a New System of Records.
In accordance with the Privacy Act of 1974, the Department of Transportation (DOT) proposes a new system of records titled “Safe Driver Apprenticeship Pilot” (SDAP) Program. This system of records will allow DOT to collect and maintain records on safety performance and driving profiles of certain Commercial Motor Vehicle (CMV) drivers voluntarily participating in the SDAP program and receiving an exemption to operate in interstate commerce before reaching the age of 21. The information in the system will be used to analyze the safety performance of apprenticeship drivers as compared to current CMV drivers operating in intra- or inter-state commerce under current FMCSA regulations. This system maintains records on carriers, experienced drivers, and apprentice drivers who volunteer to participate in the SDAP. Records on carriers and experienced drivers are limited to those necessary to verify qualifications for participation, while records on apprentice drivers include safety, performance, and exposure data throughout their participation as an apprentice.
Comments on the system will be accepted on or before 30 days from the date of publication of this notice. The system will be effective 30 days after publication of this notice. Routine uses will be effective at that time.
You may submit comments, identified by docket number OST-2022-0035 by one of the following methods:
•
•
•
•
•
For system-related questions please contact: Nicole Michel, Mathematical Statistician, Department of Transportation, FMCSA, W68-310, 1200 New Jersey Ave. SE, Washington, DC 2-590. Email:
In accordance with the Privacy Act of 1974, DOT is proposing a new system of records notice (SORN) titled “Department of Transportation (DOT)/Federal Motor Carrier Safety Administration (FMCSA)—013, Safe Driver Apprenticeship Pilot (SDAP)” to allow FMCSA to implement the “Safe Driver Apprenticeship Pilot” (SDAP) program to fulfill the requirements of Section 23022 of the Infrastructure
This system will also collect information on experienced drivers to verify their eligibility to serve as an experienced driver but will not collect safety and performance data for experienced drivers.
Carriers will apply to participate in the program by providing their carrier name, USDOT number, physical address, phone number, email address, fleet size, type of operation (interstate vs intrastate), types of drivers employed (class A, class B, and/or class C), turnover rate, states traveled through, pay structure, annual miles traveled, an estimate on the number of experienced drivers and apprentices the carrier will enroll, their registered apprenticeship number with Department of Labor, carrier operation types, types of CMVs employed, and information regarding currently utilized technologies (Electronic Logging Devices [ELDs], Onboard Monitoring Systems [OBMS], and Video Recording systems). Carrier applications will be reviewed against published eligibility requirements. Carriers will be notified of whether or not they are accepted into the program by FMCSA. Accepted carriers will be required to attend a webinar to review participation requirements.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides a covered person with a statutory right to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. The JRA also prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act. Below is the description of the Safe Driver Apprenticeship Pilot Program System of Records. In accordance with 5 U.S.C. 552a(r), DOT has provided a report of this system of records to the OMB and to Congress.
DOT/FMCSA 013—Safe Driver Apprenticeship Pilot (SDAP).
Unclassified.
Records are maintained by a contractor, the contract for the system is maintained at FMCSA Headquarters, 1200 New Jersey Ave SE, Washington, DC 20590.
For FMCSA, the System Manager is Nicole Michel, Mathematical Statistician, 1200 New Jersey Ave SE, Washington, DC, 20590. Email:
49 U.S.C. 31315; Section 23022 of the Infrastructure Investment and Jobs Act (P.L. 117-58, Nov. 15, 2021).
The purpose of the system is to collect data on carriers and drivers participating in the SDAP. The data collected will be used to determine the safety benefits or risks posed by implementing an apprenticeship program for drivers under the age of 21 to operate in interstate commerce. Data will be collected to verify qualifications for participation, to issue the necessary exemptions for carriers and drivers to participate in the SDAP program, and to monitor operational and safety performance throughout participation.
The system of records will include information about motor carriers who voluntarily apply to participate in the SDAP, current CDL holders who apply to participate as “experienced drivers,” and drivers who apply to participate as apprentices,
1. Motor Carriers,
2. Experienced Drivers, and
3. Apprentice Drivers.
All individuals covered by this system must voluntarily apply to participate in the SDAP.
The SDAP will collect, process, transmit, and store the following types of information on all individuals covered by this system:
1. Basic Identifying Information (
The SDAP will collect, process, transmit, and store the following types of information on motor carriers only:
1. Operational Profile Information (
2. A valid Department of Labor Registered Apprenticeship number
The SDAP will collect, process, transmit, and store the following types of information on experienced drivers only:
1. Employment history for the past two years (
2. Qualifications and CMV Experience (
The SDAP will collect, process, transmit, and store the following types of information on apprentice drivers only:
1. Training and employment history (
2. Safety Performance Benchmarks (
3. Exposure data throughout participation (
4. Safety data throughout participation (
Additionally, the SDAP will collect, process, transmit, and store information on acceptance letters, letters of disqualification, exemption letters, and other official correspondence throughout the pilot program.
Records are obtained from motor carriers that volunteer to participate in the pilot program and are accepted for participation into the pilot program by FMCSA. Additionally, individuals who volunteer to participate in the pilot program will submit applications through the motor carrier and the motor
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DOT as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. In the event that a system of records maintained by DOT to carry out its functions indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether Federal, State, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto.
2a. Routine Use for Disclosure for Use in Litigation. It shall be a routine use of the records in this system of records to disclose them to the Department of Justice or other federal agency conducting litigation when—(a) DOT, or any agency thereof, or (b) Any employee of DOT or any agency thereof, in his/her official capacity, or (c) Any employee of DOT or any agency thereof, in his/her individual capacity where the Department of Justice has agreed to represent the employee, or (d) The United States or any agency thereof, where DOT determines that litigation is likely to affect the United States, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or other federal agency conducting the litigation is deemed by DOT to be relevant and necessary in the litigation, provided, however, that in each case, DOT determines that disclosure of the records in the litigation is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
2b. Routine Use for Agency Disclosure in Other Proceedings. It shall be a routine use of records in this system to disclose them in proceedings before any court or adjudicative or administrative body before which DOT or any agency thereof, appears, when—(a) DOT, or any agency thereof, or (b) Any employee of DOT or any agency thereof in his/her official capacity, or (c) Any employee of DOT or any agency thereof in his/her individual capacity where DOT has agreed to represent the employee, or (d) The United States or any agency thereof, where DOT determines that the proceeding is likely to affect the United States, is a party to the proceeding or has an interest in such proceeding, and DOT determines that use of such records is relevant and necessary in the proceeding, provided, however, that in each case, DOT determines that disclosure of the records in the proceeding is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
3. Disclosure may be made to a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual. In such cases, however, the Congressional office does not have greater rights to records than the individual. Thus, the disclosure may be withheld from delivery to the individual where the file contains investigative or actual information or other materials which are being used, or are expected to be used, to support prosecution or fines against the individual for violations of a statute, or of regulations of the Department based on statutory authority. No such limitations apply to records requested for Congressional oversight or legislative purposes; release is authorized under 49 CFR 10.35(9).
4. One or more records from a system of records may be disclosed routinely to the National Archives and Records Administration (NARA) in records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
5. DOT may make available to another agency or instrumentality of any government jurisdiction, including State and local governments, listings of names from any system of records in DOT for use in law enforcement activities, either civil or criminal, or to expose fraudulent claims, regardless of the stated purpose for the collection of the information in the system of records. These enforcement activities are generally referred to as matching programs because two lists of names are checked for match using automated assistance. This routine use is advisory in nature and does not offer unrestricted access to systems of records for such law enforcement and related antifraud activities. Each request will be considered on the basis of its purpose, merits, cost effectiveness and alternatives using Instructions on reporting computer matching programs to the Office of Management and Budget, OMB, Congress, and the public, published by the Director, OMB, dated September 20, 1989.
6. DOT may disclose records from this system, as a routine use, to appropriate agencies, entities, and persons when (1) DOT suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) DOT has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DOT or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DOT's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
7. DOT may disclose records from this system, as a routine use, to the Office of Government Information Services for the purpose of (a) resolving disputes between FOIA requesters and federal agencies and (b) reviewing agencies' policies, procedures, and compliance in order to recommend policy changes to Congress and the President.
8. DOT may disclose records from the system, as a routine use, to contractors and their agents, experts, consultants, and others performing or working on a contract, service, cooperative agreement, or other assignment for DOT, when necessary to accomplish an agency function related to this system of records.
9. DOT may disclose records from this system, as a routine use, to an agency, organization, or individual for the purpose of performing audit or oversight operations related to this system of records, but only such records as are necessary and relevant to the audit or oversight activity. This routine use does not apply to intra-agency sharing authorized under Section (b)(1) of the Privacy Act.
Records in this system are stored electronically on a contractor-maintained cloud storage service.
Records are retrieved by carrier name, driver name, CDL number, or through the randomly generated participant ID assigned by the DOT contractor.
Unscheduled records must be retained indefinitely pending the agency's submission, and NARA's approval, of a disposition schedule. DOT anticipates proposing to NARA, as an appropriate retention period for these records, two years or until no longer necessary for reference.
DOT safeguards records in this system according to applicable rules and policies, including all applicable DOT IT systems security and access policies. DOT has imposed strict controls to minimize the risk of information being compromised. Access to the records in this system is limited to those individuals who have a need to know the information in furtherance of the performance of their official duties, and who have appropriate clearances or permissions.
Individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the System Manager at the address provided under “System Manager and Address” above. Individuals may also search the public docket at
When seeking records about yourself from this system of records or any other Departmental system of records, the request must conform with the Privacy Act regulations set forth in 49 CFR part 10. The individual's request must verify his/her identity by providing his/her full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. No specific form is required.
In addition, the individual should:
• Explain why the individual believes the Department would have information on him/her;
• Identify which component(s) of the Department the individual believes may have the information about him/her;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records.
If an individual's request is seeking records pertaining to another living individual, the first individual must include a statement from the second individual certifying his/her agreement for the first individual to access his/her records. Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered by the JRA, see “Record Access Procedures” above.
See “Record Access Procedures” above.
None.
Not applicable.
Issued in Washington, DC.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Generation-Skipping Transfer Tax Return For Terminations.
Written comments should be received on or before September 13, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202)317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning U.S. Income Tax Return for Qualified Funeral Trusts.
Written comments should be received on or before September 13, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202)317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning New Markets Credit.
Written comments should be received on or before September 13, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and
U.S.-China Economic and Security Review Commission.
Notice of open public hearing.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission. The Commission is mandated by Congress to investigate, assess, and report to Congress annually on “the national security implications of the economic relationship between the United States and the People's Republic of China.” Pursuant to this mandate, the Commission will hold a public hearing in Washington, DC on August 3, 2022 on “Challenges from Chinese Policy in 2022: Zero-COVID, Ukraine, and Pacific Diplomacy.”
The hearing is scheduled for Wednesday, August 3, 2022 at 9:30 a.m.
This hearing will be held with panelists and Commissioners participating in-person or online via videoconference. Members of the audience will be able to view a live webcast via the Commission's website at
Any member of the public seeking further information concerning the hearing should contact Jameson Cunningham, 444 North Capitol Street NW, Suite 602, Washington DC 20001; telephone: 202-624-1496, or via email at
The hearing will be co-chaired by Commissioner James Mann and Commissioner Randall Schriver. Any interested party may file a written statement by August 3, 2022 by transmitting to the contact above. A portion of the hearing will include a question and answer period between the Commissioners and the witnesses.
July 19, 2022, 11:00 a.m. to 3:00 p.m., Eastern time.
This meeting will take place at the Embassy Suites by Hilton San Diego Bay Downtown, 601 Pacific Highway, San Diego, California 92101 and will be accessible via conference call and via Zoom Meeting and Screenshare. Any interested person may call (i) 1-929-205-6099 (US Toll) or 1-669-900-6833 (US Toll) or (ii) 1-877-853-5247 (US Toll Free) or 1-888-788-0099 (US Toll Free), Meeting ID: 996 4282 3624, to listen and participate in this meeting. The website to participate via Zoom Meeting and Screenshare is
This meeting will be open to the public.
The Unified Carrier Registration Plan Finance Subcommittee (the “Subcommittee”) will continue its work in developing and implementing the Unified Carrier Registration Plan and Agreement. The subject matter of this meeting will include:
The UCR Finance Subcommittee Chair will welcome attendees, introduce new Subcommittee members and the new Subcommittee Vice-Chair, call the meeting to order, call roll for the Finance Subcommittee, confirm whether a quorum is present, and facilitate self-introductions.
The UCR Executive Director will verify the publication of the meeting notice on the UCR website and distribution to the UCR contact list via email followed by the subsequent publication of the notice in the
The agenda will be reviewed, and the UCR Finance Subcommittee will consider adoption.
➢ Subcommittee action only to be taken in designated areas on agenda.
Draft minutes from the March 31, 2022 UCR Finance Subcommittee meeting via teleconference will be reviewed. The UCR Finance Subcommittee will consider action to approve.
The UCR Finance Subcommittee Chair and UCR Depository Manager will present proposed 2024 and 2025 fee level recommendations for UCR Board consideration to be made to the Secretary of the U.S. Department of Transportation and the Federal Motor Carrier Safety Administration (FMCSA) as required under 49 U.S.C. Section 104504a(d)(7). The Subcommittee may take action to approve 2024 and 2025 fee level recommendations for UCR Board consideration.
The UCR Finance Subcommittee Chair and UCR Depository Manager will lead a discussion on developing a policy that will result in an enhanced cash management system designed to increase the interest income that is earned on both administrative reserve funds and excess fees held in the UCR Depository.
The UCR Finance Subcommittee Chair will present proposed contract extensions between the UCR Plan and the Kellen Company (UCR Administrator) and AAG3 LLC (UCR Executive Director). The Finance Subcommittee may consider action regarding the proposed contract extensions.
The UCR Finance Subcommittee Chair and DSL will review the performance of the three current pilot projects and may make recommendations to the UCR Board to enhance, maintain, extend, or sunset certain pilot projects.
The UCR Finance Subcommittee Chair and a representative from Truist Bank will lead a discussion regarding the general macroeconomic trends that have emerged in 2022 as well as certain foresight into emerging forces that may impact the United States economy and what actions the United States Government may consider to counteract economic disruptions. Discussion will emphasize general macroeconomic trends relating to possible impacts on the motor carrier industry.
The UCR Depository Manager will review the expenditures of the UCR Plan for the first six months ended June 30, 2022 with the Finance Subcommittee. A presentation of a forecast for the remainder of 2022 and consequently the full-year will also be presented.
The UCR Depository Manager will provide a preview of the 2023 administrative expense budget to the Finance Subcommittee.
The UCR Finance Subcommittee Chair will call for any other items Finance Subcommittee members would like to discuss.
The UCR Finance Subcommittee Chair will adjourn the meeting.
The agenda will be available no later than 5:00 p.m. Eastern time, July 12, 2022 at:
Elizabeth Leaman, Chair, Unified Carrier Registration Plan Board of Directors, (617) 305-3783,
National Cemetery Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the National Cemetery Administration, 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
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.
Wage and Hour Division, Department of Labor.
Notice of proposed rulemaking.
The Department of Labor (Department) proposes regulations to implement Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Joseph R. Biden, Jr. on November 18, 2021. The order establishes a general policy of the Federal Government that service contracts which succeed contracts for the same or similar services, and solicitations for such contracts, shall include a non-displacement clause. The non-displacement clause requires the contractor and its subcontractors to offer qualified employees employed under the predecessor contract a right of first refusal of employment under the successor contract. The Executive order also directs the Secretary of Labor (Secretary) to issue regulations to implement the requirements of this order. The order further directs that within 60 days of the Secretary issuing final regulations, the Federal Acquisition Regulatory Council (FAR Council) shall amend the Federal Acquisition Regulation (FAR) to provide for inclusion of the clause in section 3 of the order. Finally, the order requires the Director of the Office of Management and Budget (OMB) to issue guidance to implement section 6(c) of this order.
Interested persons are invited to submit written comments on this notice of proposed rulemaking (NPRM) on or before August 15, 2022.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA42, by either of the following methods:
•
•
Commenters submitting file attachments on
Anyone who submits a comment (including duplicate comments) should understand and expect that the comment will become a matter of public record and will be posted without change to
Amy DeBisschop, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Alternative formats are available upon request by calling 1-866-487-9243. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.
Questions of interpretation or enforcement of the agency's existing regulations may be directed to the nearest WHD district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto WHD's website at
On November 18, 2021, President Joseph R. Biden, Jr. issued Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts.” 86 FR 66397 (Nov. 23, 2021). This order explains that “when a service contract expires and a follow-on contract is awarded for the same or similar services, the Federal Government's procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor's employees, thus avoiding displacement of these employees.”
Section 1 of Executive Order 14055 sets forth a general policy of the Federal Government that when a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government's procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor's employees, thus avoiding displacement of these employees. 86 FR 66397. Using a carryover workforce reduces disruption in the delivery of services during the period of transition between contractors, maintains physical and information security, and provides the Federal Government with the benefits of an experienced and well-trained workforce that is familiar with the Federal Government's personnel, facilities, and requirements.
Section 2 of Executive Order 14055 defines “service contract” or “contract” to mean any contract, contract-like instrument, or subcontract for services entered into by the Federal Government or its contractors that is covered by the Service Contract Act of 1965, as amended, (SCA) and its implementing regulations. 86 FR 66397. Section 2 also
Section 3 of Executive Order 14055 provides the wording for a required contract clause that each agency must, to the extent permitted by law, include in solicitations for service contracts and subcontracts that succeed a contract for performance of the same or similar work. 86 FR 66397-98. Specifically, the contract clause provides that the contractor and its subcontractors must, except as otherwise provided in the clause, in good faith offer service employees, as defined in the SCA, employed under the predecessor contract and its subcontracts whose employment would be terminated as a result of the award of the contract or the expiration of the predecessor contract under which the employees were hired, a right of first refusal of employment under the contract in positions for which those employees are qualified.
The contract clause also provides that, notwithstanding the obligation to offer employment to employees on the predecessor contract, the contractor and any subcontractors (1) are not required to offer a right of first refusal to any employee(s) of the predecessor contractor who are not service employees within the meaning of the SCA and (2) are not required to offer a right of first refusal to any employee(s) of the predecessor contractor for whom the contractor or any of its subcontractors reasonably believes, based on reliable evidence of the particular employee's past performance, that there would be just cause to discharge the employee(s). 86 FR 66398.
The contract clause also provides that a contractor must, not fewer than 10 business days before the earlier of the completion of the contract or of its work on the contract, furnish the contracting officer a certified list of the names of all service employees working under the contract and its subcontracts during the last month of contract performance. 86 FR 66398. The list must also contain anniversary dates of employment of each service employee under the contract and its predecessor contracts either with the current or predecessor contractors or their subcontractors.
The contract clause also provides that in every subcontract entered into in order to perform services under the contract, the contractor will include provisions that ensure that each subcontractor will honor the requirements of the clause in the prime contract with respect to the employees of a predecessor subcontractor or subcontractors working under the contract, as well as of a predecessor contractor and its subcontractors.
Section 4 of Executive Order 14055 provides that when an agency prepares a solicitation for a service contract that succeeds a contract for performance of the same or similar work, the agency will consider whether performance of the work in the same locality or localities in which the contract is currently being performed is reasonably necessary to ensure economical and efficient provision of services. 86 FR 66398. If an agency determines that performance of the contract in the same locality or localities is reasonably necessary to ensure economical and efficient provision of services, section 4 requires the agency, to the extent consistent with law, to include a requirement or preference in the solicitation for the successor contract that it be performed in the same locality or localities. 86 FR 66399.
Section 5 of Executive Order 14055 provides exclusions. Specifically, section 5 provides that the order does not apply to (a) contracts under the simplified acquisition threshold as defined in 41 U.S.C. 134 (
Section 6 of Executive Order 14055 authorizes a senior official of an agency to grant an exception from the requirements of section 3 of the order for a particular contract under certain circumstances. In order to grant an exception from the requirements of section 3 of the order, the senior official must, by no later than the solicitation date, provide a specific written explanation of why at least one of the following circumstances exists with respect to the contract: (i) adhering to the requirements of section 3 would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement; (ii) based on a market analysis, adhering to the requirements of section 3 of the order would: (A) substantially reduce
Section 7 of Executive Order 14055 provides that, consistent with applicable law, the Secretary will issue final regulations to implement the requirements of the order. 86 FR 66399. In addition, to the extent consistent with law, the FAR Council is to amend the FAR to provide for inclusion of the contract clause in Federal procurement solicitations and contracts subject to the order.
Section 8 of Executive Order 14055 assigns responsibility for investigating and obtaining compliance with the order to the Department. 86 FR 66399. This section authorizes the Department to issue final orders in such proceedings prescribing appropriate sanctions and remedies, including, but not limited to, orders requiring employment and payment of wages lost.
Section 9 of Executive Order 14055 revokes Executive Order 13897 of October 31, 2019, which itself rescinded Executive Order 13495 of January 30, 2009, Nondisplacement of Qualified Workers Under Service Contracts. 86 FR 66400.
Section 10 of Executive Order 14055 provides that if any provision of the order, or the application of any provision of the order to any person or circumstance, is held to be invalid, the remainder of the order and its application to any other person or circumstance will not be affected. 86 FR 66400.
Section 11 of Executive Order 14055 provides that the order is effective immediately and applies to solicitations issued on or after the effective date of the final regulations issued by the FAR Council under section 7 of the order. 86 FR 66400. For solicitations issued between the date of Executive Order 14055 and the date of the action taken by the FAR Council, or solicitations that were previously issued and were outstanding as of the date of Executive Order 14055, agencies are strongly encouraged, to the extent permitted by law, to include in the relevant solicitation the contract clause described in section 3 of the order.
Section 12 of Executive Order 14055 specifies that nothing in the order is to be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof, or the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. 86 FR 66400. In addition, the order is to be implemented consistent with applicable law and subject to the availability of appropriations. The order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities; its officers, employees, or agents; or any other person. 86 FR 66401.
As indicated, section 9 of Executive Order 14055 revoked Executive Order 13897, which itself rescinded Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts. On August 29, 2011, after engaging in notice-and-comment rulemaking, the Department promulgated regulations, 29 CFR part 9 (76 FR 53720), to implement Executive Order 13495, and per Executive Order 13897, rescinded them in a Notice published in the
Executive Order 14055 is very similar to Executive Order 13495, but there are a few notable differences. For example, Executive Order 14055 requires that the contractor give an employee at least 10 business days to accept an employment offer, whereas Executive Order 13495 only required 10 calendar days. 86 FR 66398, 74 FR 6104. Similarly, Executive Order 14055 requires that the contractor must provide the contracting officer a certified list of the names of all service employees working under the contract during the last month of contract performance at least 10 business days before contract completion, whereas Executive Order 13495 only required 10 calendar days.
Executive Order 14055 also differs from Executive Order 13495 in its provisions regarding a contracting agency's authority to grant an exception from the requirements of the order for a particular contract. Specifically, section 6 of Executive Order 14055 provides that a senior official within an agency may except a particular contract from the requirements of section 3 of the order by, no later than the solicitation date, providing a specific written explanation of why at least one of the
President Biden issued Executive Order 14055 pursuant to his authority under “the Constitution and the laws of the United States,” expressly including the Procurement Act, 40 U.S.C. 101
This NPRM, which proposes to amend Title 29 of the CFR by adding part 9, proposes standards and procedures for implementing and enforcing Executive Order 14055. Proposed subpart A of part 9 relates to general matters, including the purpose and scope of the rule, as well as the definitions, coverage, exclusions, and exceptions that the rule provides pursuant to the Executive order. Proposed subpart B establishes requirements for contracting agencies and contractors to comply with the Executive order. Proposed subpart C specifies standards and procedures related to complaint intake, investigations, and remedies. Proposed subpart D specifies standards and procedures related to administrative enforcement proceedings.
The following section-by-section discussion of this proposed rule presents the contents of each section in more detail. The Department invites comments on the issues addressed in this NPRM.
Proposed subpart A of part 9 pertains to general matters, including the purpose and scope of the rule, as well as the definitions, coverage, exclusions, and exceptions that the rule provides pursuant to the Executive order.
Proposed § 9.1(a) explains that the purpose of the proposed rule is to implement Executive Order 14055. The paragraph emphasizes that the Executive order assigns enforcement responsibility for the nondisplacement requirements to the Department.
Proposed § 9.1(b) explains the underlying policy of Executive Order 14055. First, the paragraph repeats a statement from the Executive order that the Federal Government's procurement interests in economy and efficiency are served when the successor contractor or subcontractor hires the predecessor's employees. The proposed rule elaborates that a carryover workforce minimizes disruption in the delivery of services during a period of transition between contractors, maintains physical and information security, and provides the Federal Government the benefit of an experienced and well-trained workforce that is familiar with the Federal Government's personnel, facilities, and requirements. It is for these reasons that the Executive order concludes that requiring successor service contractors and subcontractors performing on Federal contracts to offer a right of first refusal to suitable employment under the contract to service employees under the predecessor contract and its subcontracts whose employment would be terminated as a result of the award of the successor contract will lead to improved economy and efficiency in Federal procurement.
Proposed § 9.1(b) further explains the general requirement established in section 3 of Executive Order 14055 that service contracts and subcontracts that succeed a contract for performance of the same or similar work, and solicitations for such contracts and subcontracts, include a clause that requires the contractor and its subcontractors to offer a right of first refusal of employment to service employees employed under the predecessor contract and its subcontracts whose employment would be terminated as a result of the award of the successor contract in positions for which the employees are qualified. Proposed § 9.1(b) also clarifies that nothing in Executive Order 14055 or part 9 is to be construed to excuse noncompliance with any applicable Executive order, regulation, or law of the United States.
Proposed § 9.1(c) outlines the scope of this proposal and provides that neither Executive Order 14055 nor part 9 creates or changes any rights under the Contract Disputes Act, 41 U.S.C. 7101
Proposed § 9.2 defines terms for purposes of this rule implementing Executive Order 14055. Most defined terms follow common applications and are based on either Executive Order 14055 itself or the definitions of relevant terms set forth in the text of related statutes and Executive orders or the implementing regulations for those statutes and orders. The Department notes that, while the proposed definitions discussed in this proposed rule would govern the implementation and enforcement of Executive Order 14055, nothing in the proposed rule is intended to alter the meaning of or to be interpreted inconsistently with the
Consistent with the definition provided in Executive Order 14055, the Department proposes to define
The Department proposes to adopt the definition of
The Department proposes to substantially adopt the definition of
The Department proposes to define
Importantly, the Department notes that the fact that an individual or entity is a
The Department proposes to define
Consistent with the definition provided in Executive Order 14055, the Department proposes to define
The Department proposes to define
The Department proposes to define the term
The Department proposes to define
The Department proposes to define
The Department proposes to define the term
The Department proposes to define
The Department proposes to define the term
Finally, the Department proposes to adopt the definitions of the terms
Proposed § 9.3 addresses the coverage provisions of Executive Order 14055. Proposed § 9.3 explains the scope of the Executive order and its coverage of executive agencies and contracts.
Executive Order 14055 provides that agencies must, to the extent permitted by law, ensure that service contracts and subcontracts that succeed a contract for performance of the same or similar work, and solicitations for such contracts and subcontracts, include a clause specifying that the successor contractor and its subcontractors must, except as otherwise provided in the order, in good faith offer service employees employed under the predecessor contract and its subcontracts, whose employment would be terminated as a result of the award of the successor contract or the expiration of the contract under which the employees were hired, a right of first refusal of employment under the successor contract in positions for which those employees are qualified. Section 2 states that “service contract” means any contract, contract-like instrument, or subcontract for services entered into by the Federal Government or its contractors that is covered by the SCA. Section 2 also defines “agency” to mean an executive department or agency of the Federal Government, including an independent establishment subject to the Procurement Act, 40 U.S.C. 102(4)(A). Section 5 specifies that the order would not apply to contracts under the simplified acquisition threshold as defined in 41 U.S.C. 134.
Proposed § 9.3 would implement these coverage provisions by stating in proposed § 9.3(a) that Executive Order 14055 and part 9 would apply to any contract or solicitation for a contract with an executive department or agency of the Federal Government, provided that: (1) it is a contract for services covered by the SCA; and (2) the prime contract exceeds the simplified acquisition threshold as defined in 41 U.S.C. 134. Proposed § 9.3(b) would require all contracts that satisfy the requirements of proposed § 9.3(a) to contain the contract clause set forth in Appendix A, and all contractors on such contracts to comply, without limitation, with the requirements of paragraphs (e), (f), and (g) of proposed § 9.12. Proposed § 9.3(c) would require all contracts that satisfy the requirements of proposed § 9.3(a) and that also succeed a contract for performance of the same or similar work, to contain the contract clause set forth at Appendix A, and all contractors on such contracts to comply, without limitation, with all the requirements of proposed § 9.12. Several issues relating to the coverage provisions of the Executive order and proposed § 9.3 are discussed below.
Executive Order 14055 would apply to contracts and solicitations for contracts with the Federal Government that meet the requirements of § 9.3. The Department proposes to define Federal Government to include “an agency or instrumentality of the United States that enters into a contract pursuant to authority derived from the Constitution or the laws of the United States.”
The plain text of Executive Order 14055 reflects that the order applies to executive departments and agencies, including independent establishments, but only when such establishments are subject to the Procurement Act, 40 U.S.C. 121,
Proposed § 9.3(a) provides that the requirements of the Executive order generally would apply to “any contract or solicitation for a contract with the Federal Government.” Section 2(a) of the Executive order defines contract to mean “any contract, contract-like instrument, or subcontract for services entered into by the Federal Government or its contractors that is covered by the Service Contract Act of 1965, as amended, 41 U.S.C. 6701
Proposed § 9.3(a) also provides that part 9 would apply to “any . . . solicitation for a contract” that meets the requirements of proposed § 9.3(a). The Department proposes to define solicitation in § 9.2 to mean “any request to submit offers, bids, or quotations to the Federal Government.” The Department broadly interprets the term solicitation to apply to both traditional and nontraditional methods of solicitation, including informal requests by the Federal Government to submit offers or quotations. However, requests for information issued by Federal agencies and informal conversations with Federal workers would not be “solicitations” for purposes of the Executive order. If the solicitation is for a contract that would be covered by part 9, then the solicitation would also be covered.
Consistent with section 2(a) of Executive Order 14055, proposed § 9.3(a)(1) clarifies that the contract must be a contract for services covered by the SCA in order to be covered by the Executive order and part 9. The SCA generally applies to every “contract or bid specification for a contract that . . . is made by the Federal Government or the District of Columbia” and that “has as its principal purpose the furnishing of services in the United States through the use of service employees.” 41 U.S.C. 6702(a)(3). The SCA is intended to cover a wide variety of service contracts with the Federal Government, so long as the principal purpose of the contract is to provide services through the use of service employees.
Proposed § 9.3(a)(2) provides that a prime contract must exceed the simplified acquisition threshold to be covered by part 9. This is consistent with section 5 of Executive Order 14055, which provides that the order does not apply to contracts under the simplified acquisition threshold as defined in 41 U.S.C. 134. Unlike Executive Order 13495, which excluded “contracts or subcontracts under the simplified acquisition threshold,” section 5 of Executive Order 14055 expressly excludes only “contracts under the simplified acquisition threshold[.]”Accordingly, the Department proposes that all subcontracts for services, regardless of size, would be covered by part 9 if the prime contract meets the coverage requirements of § 9.3. The Department notes, however, that the definitions sections of both Executive Order 13495 and Executive Order 14055 define “contract” to include “contract or subcontract,” which could support a continued exception for subcontracts under the simplified acquisition threshold. For this reason, the Department is seeking comment from the public on the potential impact, including any unintended consequences, of covering subcontracts below the simplified acquisition threshold.
Proposed § 9.3(c) provides requirements that would apply only to contracts that satisfy the requirements of paragraph (a) of proposed § 9.3 and that “
In accordance with the terms of Executive Order 14055, if a contract expires, the Department would consider successor service contracts and subcontracts for performance of the same or similar work, and solicitations for such contracts and subcontracts, to be covered by the order, assuming the successor contracts meet the requirements of proposed § 9.3(a). Thus, for example, when the term of a contract ends and a follow-on contract is awarded as a result of a solicitation, a predecessor-successor relationship would exist for purposes of Executive Order 14055 if the two contracts were for the same or similar work. Similarly, if a contract is terminated, a solicitation for a follow-on contract is issued and the follow-on contract is awarded, a predecessor-successor relationship would exist for purposes of Executive Order 14055, again if the two contracts were for the same or similar work. The identity of the contractor awarded the successor contract would not impact the coverage determination. For example, when a contract expires and the same contractor is awarded the successor contract, the terms of the order and part 9 would apply. Similarly, the successor contract would not need to be awarded by the same contracting agency as the predecessor contract in order to be covered by the Executive order and this part.
Consistent with section 3 of Executive Order 14055, proposed § 9.3(c) would require successor contracts that satisfy the requirements of paragraph (a) of proposed § 9.3 and that are for “performance of the same or similar work” to meet additional requirements of part 9. As explained in the discussion of proposed § 9.2, the Department proposes to define same or similar work
In many instances, determining whether a contract involves the same or similar work as the predecessor contract will be straightforward. For example, when a contract for food service at a Federal building expires and a new contract for food service begins at the same location that requires many of the same job classifications as the predecessor contract, the work on the successor contract would be considered to be “same or similar work.” This would be true even where more limited food services are provided under the successor contract than the predecessor contract, or where work on the successor contract requires additional job classifications that were not required for work under the predecessor contract. In other instances, the particular facts and circumstances may need to be carefully scrutinized in order to determine whether a contract involves the same or similar work as the predecessor contract. For example, when a contract expires, specific requirements from the contract may be broken out and placed in a new contract or combined with requirements from other contracts into a consolidated new contract. In such circumstances, it will be necessary to evaluate the extent to which the prior and new contracts involve the same or similar functions of work and the same or similar job classifications in order to determine whether the prior and new contracts involve the same or similar services. Finally, in some instances, it will be evident that two contracts do not involve the same or similar work. For example, if an SCA-covered contract to operate a gift shop in a Federal building expires, and a new contract is awarded to operate a dry cleaning service in the same physical space as had been occupied by the gift shop, the two contracts would not involve the same or similar work because, even though the place of contract performance would be the same, the nature of the work performed under the contracts, and the job classifications performing the work, would not be the same or similar.
Consistent with sections 2 and 3 of Executive Order 14055, which specify that the nondisplacement requirements apply equally to subcontracts, the Department notes that where a prime contract is covered by the order and part 9, any subcontracts for services are also covered and subject to the requirements of the order and part 9. However, the Executive order does not apply to non-service subcontracts between a subcontractor and a prime contractor for use on a covered Federal contract. For example, a subcontract to supply napkins and utensils to a prime contractor as part of a covered contract to operate a cafeteria in a Federal building is not a covered subcontract for purposes of this order because it is a supply subcontract rather than a subcontract for services.
The Executive Order and this part would only apply to contracts with the Federal Government requiring performance in whole or in part within the United States, which is defined to mean, when used in a geographic sense, the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Wake Island, and Johnston Island. Under this approach—which is consistent with the geographic scope of coverage under the SCA—the Executive order and this part would not apply to contracts with the Federal Government to be performed in their entirety outside the geographical limits of the United States as thus defined. However, if a contract with the Federal Government is to be performed in part within and in part outside these geographical limits and is otherwise covered by the Executive order and this part, the order and this part would apply to the contract and require a right of first refusal for any workers that have performed work inside the geographical limits of the United States as defined. As noted previously, contracts awarded by the District of Columbia or any Territory or possession of the United States would not be covered by the order, as neither the District of Columbia nor any Territory or possession of the United States would constitute an executive department or agency under this part.
Pursuant to section 5(a) of Executive Order 14055, proposed § 9.4(a) addresses the exclusion for contracts under the simplified acquisition threshold, as defined in 41 U.S.C. 134. The simplified acquisition threshold currently is $250,000. 41 U.S.C. 134. The proposed regulations would omit that amount from the regulatory text in the event that a future statutory amendment changes the amount. Any such change would automatically apply to contracts subject to part 9.
Proposed § 9.4(a)(2) clarifies that the exclusion provision at § 9.4(a)(1) would apply only to prime contracts under the simplified acquisition threshold and that whether a subcontract is excluded from the requirements of part 9 is dependent on the prime contract amount. As discussed above, section 5(a) of Executive Order 14055 excludes only “contracts under the simplified acquisition threshold[.]” This language differs from Executive Order 13495, which excluded “contracts
Proposed § 9.4(b) would implement the exclusion in section 5(b) of Executive Order 14055 relating to employment where Federal service work constitutes only part of the employee's job.
Proposed § 9.4 does not include an exclusion for contracts awarded for services produced or provided by persons who are blind or have severe disabilities. Executive Order 14055 diverges from Executive Order 13495 with respect to such contracts. Section 3 of Executive Order 13495 specifically excluded “contracts or subcontracts awarded pursuant to the Javits-Wagner-O'Day Act, 41 U.S.C. 46-48c;” “guard, elevator operator, messenger, or custodial services provided to the Federal Government under contracts or subcontracts with sheltered workshops employing the severely handicapped as described in section 505 of the Treasury, Postal Services and General Government Appropriations Act, 1995, Public Law 103-329;” and “agreements for vending facilities entered into pursuant to the preference regulations issued under the
However, section 12 of Executive Order 14055 expressly provides that nothing in the order should be construed “to impair or otherwise affect . . . the authority granted by law” and directs that the order be “implemented consistent with applicable law.” The applicable law encompassed by these sections includes, for example, the Javits-Wagner-O'Day Act, 41 U.S.C. 8501-8506, section 505 of the Treasury, Postal Services and General Government Appropriations Act, 1995, Public Law 103-329, and the Randolph-Sheppard Act, 20 U.S.C. 107. Each of these laws establishes requirements for contracts awarded for services produced or provided by persons who are blind or have severe disabilities that may conflict with the requirements of Executive Order 14055 in that these laws may impose hiring requirements that preclude, in whole or in part, offering employment to the employees on the predecessor contract. Where direct legal conflicts squarely exist between the requirements of Executive Order 14055 and the requirements of another statute, regulation, Executive Order, or Presidential Memoranda under the particular factual circumstances of a specific situation, the requirements of this part would not apply. As with any determination to except a particular contract from the application of the nondisplacement requirements, a contracting agency would be obligated to follow the procedures proposed at § 9.5 to support a determination that the requirements of this part do not apply because of a direct legal conflict.
The Department recognizes that contracting agencies award contracts under a wide variety of programs, including those mentioned above, many of which have, by law, specific processes and requirements. The Department understands that some of these requirements may make implementation of the requirements of Executive Order 14055 more challenging under certain programs than others. The Department invites comment on any specific programs with contracting requirements that may conflict with Executive Order 14055 or the provisions of this proposed rule. For example, the Department recognizes that applying the requirements of Executive Order 14055 to some contracts awarded pursuant the Randolph-Sheppard Act, specifically the Randolph-Sheppard Vending Facility Program (RSVFP), may present certain challenges. The Department invites interested parties to comment on the interaction of the requirements in the proposed rule with the provisions of the Randolph-Sheppard Act.
Section 6 of the order provides a procedure for Federal agencies to except particular contracts from the application of the nondisplacement requirements. The Department proposes to implement this procedure through language in § 9.5 of the regulations. Under section 6 of the order, and in proposed § 9.5, an agency would be permitted to grant an exception from the requirements of section 3 of the order (the incorporation of the nondisplacement contract clause) for a particular contract under certain circumstances. The determination must be made no later than the solicitation date for the contract and must include a specific written explanation of why at least one of the qualifying circumstances exists with respect to that contract.
In § 9.5(a), the Department proposes to list the qualifying circumstances for an agency exception based on the agency exceptions provision in section 6(a) of the order. These include (1) where adhering to the requirements of the order or the implementing regulations would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement; (2) where based on a market analysis, adhering to the requirements of the order or the implementing regulations would both substantially reduce the number of potential bidders so as to frustrate full and open competition and not be reasonably tailored to the agency's needs for the contract; or (3) where adhering to the requirements of the order or the implementing regulations would otherwise be inconsistent with statutes, regulations, Executive orders, or Presidential Memoranda.
The Department proposes to interpret section 6(a) of the order as allowing agencies to make exceptions only for prime contracts and not for individual subcontracts. As discussed above, whether a subcontract is covered by the order depends on whether the prime contract is covered. If the prime contract is covered, then the subcontracts under that prime contract will also be covered. If a prime contract is not covered (whether because it does not satisfy an element of coverage or because an agency has made an exception for that prime contract), then the subcontracts under that prime contract will also not covered. Under the Department's interpretation of section 6(a), there would be no mechanism for a prime contract to be covered, but for an agency to exempt individual subcontracts for services under that prime contract.
The Department's proposed interpretation of section 6(a) follows from a comparison of this section with the agency exemption provision in Executive Order 13495. In Executive Order 13495, the agency exemption provision permitted agencies to exempt “a particular contract, subcontract, or purchase order or any class of contracts, subcontracts, or purchase orders.” In Executive Order 14055, however, section 6(a) permits agencies to make exceptions only for “a particular contract.” Accordingly, the proposed regulatory text at § 9.5(a) only provides the authority for agencies to make an exception for “a prime contract.” However, the Department also recognizes that section 2(a) of the order defines the term “contract” as including “subcontract,” which could support an interpretation of section 6(a) as allowing a continued case-by-case exception for subcontracts. For this reason, the Department is seeking comment from the public on the potential impact, including any unintended consequences, of not allowing agency exceptions for particular subcontracts or classes of subcontracts.
Section 6(a) of Executive Order 14055 limits contracting agency exception decisions by requiring that a decision to except a contract must be made by a “senior official” within the agency. The Department interprets “senior official” to mean the senior procurement executive, as defined in 41 U.S.C. 1702(c). Consistent with this interpretation, the Department proposes regulatory text at § 9.5(a) that identifies the senior procurement executive as the senior official who must make an exception decision. Because the order specifically requires the decision to be made by a senior official, the Department concludes that the decision cannot be delegated by the senior procurement executive to a lower-level official.
Proposed § 9.5(b) reiterates the procedural requirements that section 6(a) of the order states must be satisfied for an exception to be effective. The proposed language would require that the action to except a contract from some or all of the requirements of the Executive order or the regulations include a specific written explanation of the facts and reasoning supporting the determination. Following the text of section 6(a) of the order, the proposed language in § 9.5(b) would require that this written explanation be issued no later than the solicitation date, which is also the latest date that the action to except a contract may be taken. The proposed language in § 9.5(b) provides that any determination by an agency to exercise its exception authority that is made after the solicitation date or without the specific written explanation would be inoperative. In such a circumstance, the contract clause has been wrongly omitted and the agency would be required to take action consistent with paragraph (f) of § 9.11 of this part.
The Department also proposes to provide additional guidance and requirements applicable to each of the three circumstances in which an agency may make an exception for a particular contract.
Proposed § 9.5(c) would address the provision in section 6(a)(i) of Executive Order 14055 permitting an exception where adhering to the requirements of the order would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement. Although the wording differs slightly, the Department interprets this circumstance to be effectively the same as the agency exemption that was included in section 4 of Executive Order 13495, which authorized an exemption where the requirements “would not serve the purposes of [the] order” or “would impair the ability of the Federal Government to procure services on an economical and efficient basis.” Both provisions require consideration of whether, in the specific circumstances of the particular contract, economy and efficiency will not be served if the contract clause is incorporated. In 2011, the Department issued detailed regulations to implement the Executive Order 13495 exemption, including factors that could be considered and others that could not be considered.
In § 9.5(c), the Department also proposes to include language stating that the written analysis that accompanies the determination must, among other things, compare the anticipated outcomes of hiring predecessor contract employees with those of hiring a new workforce. In addition, the Department proposes to include the requirement that the consideration of cost and other factors in exercising the agency's exception authority must reflect the general findings made in section 1 of the Executive order that the government's procurement interests in economy and efficiency are normally served when the successor contractor hires the predecessor's employees, and must specify how the particular circumstances support a contrary conclusion.
In § 9.5(c)(1), the Department proposes to list factors that the contracting agency may consider in making its determination. These factors are the same factors that the Department adopted in the regulations that implemented Executive Order 13495. They would include circumstances where the use of the carryover workforce would greatly increase disruption to the delivery of services during the period of transition between contracts. This might occur where, for example, the entire predecessor workforce would require extensive training to learn new technology or processes that would not be required of a new workforce. They also could include emergency situations, such as a natural disaster or an act of war, that physically displace incumbent employees. Finally, they could include situations where the senior official at the contracting agency reasonably believes, based on the predecessor employees' past performance, that the entire predecessor workforce failed, individually as well as collectively, to perform suitably—and it would not be economical or efficient to provide supplemental training to these workers.
The determination that the entire workforce failed cannot be made lightly. A senior agency official that makes such a determination must demonstrate that their belief is reasonable and is based upon reliable evidence that has been provided by a knowledgeable source, such as department or agency officials responsible for monitoring performance under the contract. Absent an ability to demonstrate that this belief is based upon reliable evidence, such as written credible information provided by such a knowledgeable source, the employees working under the predecessor contract in the last month of performance would be presumed to have performed suitable work on the contract. The head of a contracting agency or department may demonstrate a reasonable belief that an entire workforce, in fact, failed to perform suitably on the predecessor contract through written evidence that all of the employees, collectively and individually, did not perform suitably. Alone, information regarding the general performance of the predecessor contractor is not sufficient to justify an exception. It is also less likely that the agency would be able to make this showing where the predecessor employed a large workforce.
In § 9.5(c)(2), the Department proposes to list factors that the contracting agency may not consider in making an exception determination related to economy and efficiency. These include any general presumptions that directly contravene the purpose and findings of the order, such as any general presumption—without some contract-specific facts—that the use of a carryover workforce would increase (as opposed to decrease) disruption of services during the transition between contracts. While, as described above, contract-specific factors demonstrating a potential for disruption are a potential factor that may be considered, any general presumption as to such disruption would be contrary to and inconsistent with the purpose and findings of the order. Similarly, it would not be permissible to consider hypothetical cost savings that a contractor might attempt to achieve by hiring a workforce with less seniority, given the critical benefits that an experienced contractor workforce provides to the government.
The Department proposes, as it did in the regulations that implemented Executive Order 13495, to preclude agencies from using any potential reconfiguration of the contract workforce by the successor contractor as a factor in supporting an exception. Successor contractors are permitted to reconfigure the staffing pattern to increase the number of employees employed in some positions while decreasing the number of employees in others. In such cases, providing a right of first refusal does not affect the contractor's ability to do so, except that proposed § 9.12(c)(3) would require the contractor to examine the qualifications of each employee so as to minimize displacement. Thus, any potential for
The Department also proposes, as it did in the regulations that implemented Executive Order 13495, to prohibit any exception decision based solely on the contract performance by the predecessor contractor. This would include the termination of a service contract for default, which, standing alone, would not satisfy the exception standards of section 6(a)(i) of the Executive order. Such defaults, as well as other performance problems not leading to default, may result from poor management decisions of the predecessor contractor that have been addressed by awarding the contract to another entity. Even where contract problems can be traced to specific poor performing service employees, that is not necessarily sufficient to justify invocation of the exception, as, consistent with section 3(a) of the Executive order, the successor contractor can decline to offer the right of first refusal to employees for whom the contractor reasonably believes, based on reliable evidence of the particular employees' past performance, that there would be just cause to discharge the employee.
Finally, the Department limits contracting agencies from considering wage rates and fringe benefit rates of services employees in most circumstances. Minimum wage and fringe benefit rates are set by the SCA and will apply regardless of whether the predecessor workforce is re-hired. Thus, as a general matter, cost savings from a reduction in wage or fringe benefits is not an appropriate basis for making an exception for a contract from the order's requirements. Moreover, even where cost savings may be achieved theoretically by lowering wages and fringe benefits, such savings would be an inappropriate basis alone for an exception from the order because higher wages and benefits allow for the employment of workers with more skills and experience.
Proposed § 9.5(d) would address the provision in section 6(a)(ii) of Executive Order 14055 providing that an exception may be appropriate where application of the nondisplacement requirements would substantially reduce the number of potential bidders so as to frustrate full and open competition and not be reasonably tailored to the agency's needs for the contract. The proposed language of § 9.5(d) would clarify that a reduction in the number of potential bidders is not, alone, sufficient to except a contract from coverage under this authority; the senior official at the contracting agency must also find that inclusion of the contract clause would frustrate full and open competition and would not be reasonably tailored to the agency's needs for the contract. The proposed language states that on finding that inclusion of the contract clause would not be reasonably tailored to the agency's needs, the agency must specify in its written explanation how it intends to more effectively achieve the benefits that would have been provided by a carryover workforce, including physical and information security and a reduction in disruption of services.
The order, and the proposed regulatory language, requires that any exercise of this authority must be based on a market analysis. As a general matter, during the acquisition process for FAR-covered procurements, an agency must “conduct market research appropriate to the circumstances.” 48 CFR 10.001. Thus, the extent of market research conducted for any acquisition “will vary, depending on such factors as urgency, estimated dollar value, complexity, and past experience.” 48 CFR 10.002. The market analysis must be an objective, contemporary, and proactive examination of these factors. To justify the exception from the nondisplacement requirements, the market analysis would have to show that adherence to the requirements would “substantially” reduce the number of potential bidders so as to frustrate full and open competition. The likely reduction in the number of potential offerors indicated by market analysis is not, by itself, sufficient to except a contract from coverage under this authority unless the agency concludes that adhering to the nondisplacement requirements would diminish the number of potential offerors to such a degree that adequate competition at a fair and reasonable price could not be achieved and adhering to the nondisplacement requirements would not be reasonably tailored to the agency's needs.
Consistent with section 6(a) of Executive Order 14055, as with any of the exceptions, where an agency seeks to except a particular contract under this competition-related analysis, the agency would be required to provide a “specific written explanation” of why the circumstance exists. Thus, the agency's market analysis—and consideration of whether the requirements are nonetheless reasonably tailored to its needs—would need to be documented in a manner sufficient to provide and support such an explanation.
Proposed § 9.5(e) would address the provision in section 6(a)(iii) of Executive Order 14055 providing that an exception may be appropriate where adhering to the requirements of the order would otherwise be inconsistent with statutes, regulations, Executive orders, or Presidential Memoranda. In § 9.5(e), the Department proposes to require that contracting agencies consult with the Department prior to excepting contracts on this basis, unless: (1) the governing statute at issue is one for which the contracting agency has regulatory authority, or (2) the Department has already issued guidance finding an exception on the basis of the specific statute, rule, order, or memorandum to be appropriate. The Department proposes this requirement in order to provide consistency, to the extent possible, in the application of the order.
The Department proposes language at § 9.4(f) to provide a procedure for interested parties to request reconsideration of agency exception determinations. This proposed language mirrors the procedure that was included in the regulations that implemented Executive Order 13495.
Section 6(b) of the order requires agencies, to the extent permitted by law and consistent with national security and executive branch confidentiality interests, to publish, on a centralized public website, descriptions of the exceptions it has granted under that section, and to ensure that the contractor notifies affected workers and their collective bargaining representatives, if any, in writing of the agency's determination to grant an exception. Section 6(c) of the order also requires that, on a quarterly basis, each agency must report to the OMB descriptions of the exceptions granted under this section. In § 9.5(g), the Department proposes to include a recitation of these notification, publication, and reporting requirements.
Proposed subpart B of part 9 establishes the requirements that contracting agencies and contractors will undertake to comply with the nondisplacement provisions.
Proposed § 9.11 would implement section 3 of Executive Order 14055, which directs agencies to ensure that covered contracts and solicitations include the nondisplacement contract clause. The proposed section specifies contracting agency responsibilities to incorporate the nondisplacement contract clause in covered contracts, provide notice to employees on predecessor contracts of their possible right to an offer of employment, and to consider whether performance of the work in the same locality or localities in which a predecessor contract is currently being performed is reasonably necessary to ensure economical and efficient provision of services. The proposed section also specifies contracting agency responsibilities to provide the list of employees on the predecessor contract to the successor, to forward complaints and other pertinent information to WHD when there are allegations of contractor non-compliance with the Executive order and this part, and to retroactively incorporate the contract clause when it was not initially incorporated.
Section 3 of Executive Order 14055 specifies a contract clause that must be included in solicitations and contracts for services that succeed contracts for the performance of the same or similar work. 86 FR 66397. Proposed § 9.11(a) provides the regulatory requirement to incorporate the contract clause specified in Appendix A in covered service contracts, and solicitations for such contracts, that succeed contracts for performance of the same or similar work, except for procurement contracts subject to the FAR. For procurement contracts subject to the FAR, contracting agencies will use the clause set forth in the FAR developed to implement this rule; that clause must both accomplish the same purposes as the clause set forth in Appendix A and be consistent with the requirements set forth in this rule.
Including the full contract clause in a covered contract is an effective and practical means of ensuring that contractors receive notice of their obligations under Executive Order 14055. Therefore, the Department prefers that covered contracts include the contract clause in full. However, the Department notes that there could be instances in which a contracting agency, or a contractor, does not include the entire contract clause verbatim in a covered contract or solicitation for a covered contract, but the facts and circumstances establish that the contracting agency, or contractor, sufficiently apprised a prime or lower-tier contractor that the Executive order and its requirements apply to the contract. In such instances, the Department believes it would be appropriate to find that the full contract clause has been properly incorporated by reference.
Contract clause paragraphs (a) through (e) of proposed Appendix A repeat the clause in paragraphs (a) through (e) of the Executive Order verbatim, with one exception. The proposed modification of the contract clause would insert the number of the Executive order, 14055, to replace the blank line that appears in paragraph (d) of the contract clause contained in the order, as its number was not known at the time the President signed the order.
Proposed contract clause paragraph (a) would require the successor contractor and its subcontractors to provide the service employees employed under the predecessor contract (including its subcontracts) the right of first refusal of employment in positions for which the employees are qualified. Proposed contract clause paragraph (b) would create two exceptions to the right of first refusal. One is for employees who are not service employees and the other is for any employee for whom there would be just cause to discharge based on evidence of the particular employee's past performance. Proposed contract clause paragraph (c) would require contractors to furnish the contracting officer with a list of employees that the contracting officer will provide to the successor contractor to ensure the successor contractor has the information necessary to provide the employees with the right of first refusal. Proposed contract clause paragraph (d) provides that the Secretary may pursue sanctions against a contractor for its failure to comply with Executive Order 14055. Proposed contract clause paragraph (e) would require contractors to include provisions in their subcontracts that ensure that each subcontractor will honor the requirements of paragraphs (a) through (c), and require contractors to take any action with respect to any such subcontract as may be directed by the Secretary as a means of enforcing such provisions, including the imposition of sanctions for noncompliance.
Proposed Appendix A sets forth additional provisions that are necessary to implement the order. The additional paragraphs would appear in paragraphs (f) through (i) of the contract clause contained in Appendix A to part 9. Specifically, proposed contract clause paragraph (f)(1) provides notice that the contractor must furnish the contracting officer with a certified list of names of all service employees working under the contract (including its subcontracts) at the time the list is submitted. The list must also include anniversary dates of employment of each service employee under the contract and its predecessor contracts with either the current or predecessor contractors or their subcontractors. Proposed paragraph (f)(1) further explains that if there are changes to the workforce made after the
Proposed contract clause paragraph (f)(2) provides notice that under certain circumstances the contracting officer will, upon their own action or upon written request of the Administrator, withhold or cause to be withheld as much of the accrued payments due on either the contract or any other contract between the contractor and the Government that the Administrator requests or that the contracting officer decides may be necessary to pay unpaid wages or to provide other appropriate relief due under part 9.
Proposed contract clause paragraph (g) would require the contractor to maintain certain records to demonstrate compliance with the substantive requirements of part 9. This proposed paragraph would enable contractors to understand their obligations and provide a readily accessible list of records that contractors would be required to maintain. The proposed paragraph specifies that the contractor would be required to maintain the particular records (regardless of format,
Proposed contract clause paragraph (h) would require the contractor, as a condition of the contract award, to cooperate in any investigation by the contracting agency or the Department into possible violations of the provisions of the nondisplacement clause and to make records requested by such official(s) available for inspection, copying, or transcription upon request. Proposed contract clause paragraph (i) provides that disputes concerning the requirements of the nondisplacement clause would not be subject to the general disputes clause of the contract. Instead, such disputes would be resolved in accordance with the procedures in part 9.
Proposed § 9.11(b) specifies that when a contract will be awarded to a successor for the same or similar work, the contracting officer must take steps to ensure that the predecessor contractor provides written notice to service employees employed under the predecessor contract of their possible right to an offer of employment, consistent with the requirements in § 9.12(e)(3).
Proposed § 9.11(c) would implement the location continuity requirements in section 4 of the order. In § 9.11(c)(1), the proposed regulatory language restates the requirement in section 4(a) of the order that, in preparing covered solicitations, contracting agencies “consider whether performance of the work in the same locality or localities in which the contract is currently being performed is reasonably necessary to ensure economical and efficient provision of services.” In § 9.11(c)(2), the proposed regulatory language also restates the requirement in section 4(b) of the order, that, if a contracting agency determines that performance in the same locality is reasonably necessary, then the agency must, “to the extent consistent with law, include a requirement or preference in the solicitation for the successor contract that it be performed in the same locality or localities.”
In § 9.11(c)(3), the Department proposes procedural safeguards for the required location continuity determination. The Department proposes to require that agencies complete the location continuity analysis prior to the date of issuance of the solicitation. The Department also proposes to require that any agency determination not to include a location continuity requirement or preference must be made in writing by the agency's senior procurement executive. The requirement that the determination be made in writing is consistent with 48 CFR 4.801(b) of the FAR, which requires sufficient documentation in contract files to support actions taken. The Department seeks input from commenters regarding these proposed procedural safeguards and any alternative safeguards that might assist agencies in ensuring that the location continuity determination is carried out as required by the order.
Proposed § 9.11(c)(3) includes safeguards to ensure that interested parties are able to request reconsideration of a determination not to include a location continuity requirement or preference. Where an agency has conducted the location continuity analysis and determined that no such requirement or preference is warranted, the proposed language would require that the agency include a statement to that effect in the solicitation. The statement in the solicitation would assist interested parties by clarifying that the agency conducted the location continuity analysis and determined not to include the requirement or preference, and did not simply fail to conduct the analysis at all. The agency would also be required to ensure that the incumbent contractor notifies affected workers and their collective bargaining representatives, if any, in writing of the agency's determination not to include a location continuity requirement or preference and of the workers' right to request reconsideration. This notification, and the contractor's confirmation to the agency that the notification has been made, would need to occur within 5 business days after the solicitation is issued. The Department has proposed language in the nondisplacement contract clause set forth in Appendix A that would require contractors to agree to provide this notification. Finally, § 9.11(c)(3) would provide that any request by an interested party for reconsideration of an agency's decision to include, or not to include, a location continuity requirement or preference must be directed to the head of the contracting department or agency. This provision for requesting reconsideration is similar to the approach the Department proposes with regard to agency exceptions in § 9.5 of the regulations. As in that section, the use of the term “interested parties” is intended to include workers and worker representatives in addition to contractors and prospective bidders. The Department seeks input from commenters on an appropriate time limit within which interested parties
In § 9.11(c)(4), the Department proposes language that restates, in part, the language from section 3(b) of the order, which clarifies that nothing in the order should be interpreted as requiring or recommending that contractors, subcontractors, or contracting agencies must pay relocation costs for employees of predecessor contractors hired pursuant to their exercise of their rights under the order. The Department proposes similar language, directed at contractors and subcontractors specifically, in § 9.12(b)(6).
The location continuity provision in the order and the proposed implementing regulations serve an important purpose. Like Executive Order 13495, Executive Order 14055 reflects that there is a relationship between the effectiveness of the nondisplacement order and the location of a successor contract. In sections 1 and 5 of Executive Order 13495, the order limited coverage only to contracts for similar services at the “same location.” While Executive Order 14055 does not contain a similar limitation to contracts at the “same location,” it contains the provision at section 4 that requires contracting agencies to consider requiring location continuity for all covered contracts.
Executive 14055 also contains additional interrelated provisions governing how the order will apply related to the location of covered contracts. As an initial matter, because there is no “same location” requirement, the order applies regardless of the location of the successor contract. Thus, even if the place of performance for a successor contract will be in a different locality from the predecessor contract, the successor contract would still be required to include the nondisplacement contract clause and the successor contractor would still be required to provide workers on the predecessor contract with a right of first refusal for positions on the new contract. Section 3(b) of the order, however, clarifies that it should not be construed to require or recommend the payment of relocation costs to workers who exercise their right to take a new position under those circumstances.
The central location continuity provisions, in section 1 and section 4 of Executive Order 14055, reflect the basic conclusion that the right of first refusal in the contract clause may have a more limited effect if a contract is moved beyond commuting distance from the predecessor contract. Section 1 states that location continuity can often provide the same benefits that stem from the core nondisplacement requirement—which, the order explains, includes reducing disruption in the delivery of services between contracts, maintaining physical and information security, and providing experienced and well-trained workforces that are familiar with the Federal Government's personnel, facilities, and requirements. The benefits of using a carryover workforce and location continuity are intertwined because, for many contracts, moving performance to a different locality will mean that most (or all) of the incumbent contractor's workers will ultimately not be able or willing to relocate and therefore will not provide a carryover workforce. In such circumstances, imposing a location continuity requirement or preference may be the best way to ensure the effectiveness of Executive Order 14055. For that reason, section 4 of the order requires that for each covered contract, the contracting officer consider whether to include a requirement or preference for location continuity.
In many cases, contracts may already require location continuity for reasons other than those stated in the Executive order. For example, where the services are related to the physical security or maintenance of a specific Federal facility, the location of the contract performance will not be in question. In other circumstances, where the Federal employees who receive services from or provide oversight for the contract at issue are located at a specific Federal facility, location continuity or a related geographic limitation may be appropriate to ensure continuity of services or facilitate site visits to the contractor's facilities for oversight or collaboration purposes.
Executive Order 14055 does not suggest that a location continuity requirement is appropriate in all circumstances. Rather, it instructs contracting agencies to consider whether to impose such a requirement or preference on a case-by-case basis. In some cases, location continuity may be particularly important because the use of a carryover workforce provides critical benefits. This may be particularly true, for example, where the incumbent workforce on the contract handles classified information or sensitive information, such as personal financial or identifiable information. For such workforces, the contracting agency may have an overriding interest in keeping the contract's incumbent employees—whose dependability and trust have already been tested—rather than starting over with a new set of contractor employees. In other cases, the contracting agency's basic interest in a carryover workforce may be outweighed by an agency re-organization that creates different location needs. If, for example, an agency moves the Federal facility that will be providing oversight for the contract from one state to another, it may make sense not to require or prefer location continuity but instead to move the preferred contract locality along with the related Federal facility even if it may have a detrimental effect on contract-employee retention.
Given the order's requirement that contracting agencies consider these questions, the Department is contemplating whether the proposed regulatory provision at § 9.11(c) should provide additional guidance on the relevant factors that an agency should consider when it is considering location continuity. The Department seeks comment on whether the factors should be provided in the regulatory text, and, if so, which factors to include and whether to provide guidance regarding any particular weight that should be given to each of them. In this regard, the Department notes that the ultimate question here—of economy and efficiency—may also be at issue in the determination of whether a contract should be excepted entirely from the application of the order, as detailed in proposed § 9.5. The location continuity determination thus presents some of the same questions as those exception determinations. For example, given the purpose and policy of the order, to what extent should contracting agencies be required to start with a presumption in favor of location continuity in order to secure the full benefits of the nondisplacement clause on workforce retention? When, if ever, is it appropriate for contracting officers to consider costs—such as the potential to reduce labor costs by moving operations to a lower-cost locality—as a reason to decline to require location continuity? What other factors may weigh in favor
Finally, as discussed further in proposed § 9.5 regarding exceptions authorized by agencies, the Department is proposing regulatory language that would make an exception determination ineffective as a matter of law if the agency does not follow the procedural requirements for such an exception. The Department seeks comment on whether a similar provision is appropriate for addressing agency failures to follow location continuity procedures. The Department also seeks comment on whether the regulations should include specific remedies for workers or sanctions for contractors in the circumstances in which a contractor fails to timely provide the workers or workers' representative the required notice that a contracting agency has determined not to include location continuity requirements or preferences in the solicitation for a successor contract.
Proposed § 9.11(d) would require the contracting officer to provide the predecessor contractor's list of employees referenced in proposed § 9.12(e)(1) to the successor contractor and that, on request, the list will be provided to employees or their representatives, consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable law. The predecessor contractor's list of employees must be provided no later than 21 calendar days prior to the beginning of performance on the contract, and if an updated list is provided by the predecessor contractor pursuant to § 9.12(e)(2), the updated list must be provided within 7 calendar days of the beginning of performance on the contract. However, if the contract is awarded less than 30 days before the beginning of performance, then the predecessor contractor and the contracting agency must transmit the list as soon as practicable.
Although the Department anticipates that contracting officers typically will be able to provide the successor contractor with the seniority list almost immediately after receiving it from the predecessor contractor, there may be circumstances (such as if the contracting officer has questions about the accuracy of the list) in which the contracting officer needs several days to check or verify the list before transmitting it to the successor contractor. The proposed deadlines set forth in § 9.11(d) take such circumstances into account while also providing specific deadlines by which the seniority list must be transmitted to the successor contractor in order to ensure the successor has sufficient time to provide the workers with the right of first refusal and to ensure continuity of performance on the contract.
Proposed § 9.11(e) addresses contracting officers' responsibilities regarding complaints of alleged violations of part 9. The proposal states that the contracting officer would be responsible for reporting complaint information to the WHD within 15 calendar days of WHD's request for such information. The Department believes 15 calendar days is an appropriate timeframe within which to require production of information necessary to evaluate the complaint. The proposed section elaborates that the contracting officer must provide to WHD any complaint of contractor noncompliance with this part; available statements by the employee or the contractor regarding the alleged violation; evidence that a seniority list was issued by the predecessor and provided to the successor; a copy of the seniority list; evidence that the nondisplacement contract clause was included in the contract or that the contract was excepted by the agency; information concerning known settlement negotiations between the parties (if applicable); and other pertinent information the contracting officer chooses to disclose.
When the nondisplacement contract clause is erroneously excluded from the contract, proposed § 9.11(f) would require a contracting agency to retroactively incorporate the nondisplacement contract clause on its own initiative or within 15 calendar days of notification by an authorized representative from the Department. There may be limited circumstances where only prospective, rather than retroactive, application of the contract clause is warranted. For example, solely prospective relief might be warranted where the contracting officer omitted the clause in good faith because, based on the available information at the time, a predecessor-successor relationship was not evident. Proposed § 9.11(f) acknowledges this and permits the Administrator, at their discretion, to determine that the circumstances warrant prospective, rather than retroactive, incorporation of the contract clause. The requirements for successor contractors on how to proceed when the nondisplacement clause is retroactively incorporated into a contract after the successor contractor already has begun performance on the contract are detailed in § 9.12(b)(8). If the erroneous omission of the contract clause from a solicitation is discovered before contract award, proposed § 9.11(f) would also require the contracting agency to amend the solicitation.
Proposed § 9.12 would implement contractors' requirements and prerogatives under the nondisplacement requirements. The proposed section would consist of the general obligation to offer employment, the method of the job offer, exceptions, reduced staffing, obligations near the end of the contract, recordkeeping, and obligations to cooperate with reviews and investigations.
Proposed § 9.12(a)(1) would implement the requirement that the successor contractor and any subcontractors offer employment to the employees on the predecessor contract prior to filling employment openings. Specifically, the proposal provides that, except as provided under the exclusion listed in proposed § 9.4(b) or the exceptions listed in paragraph (c) of proposed § 9.12, a successor contractor or subcontractor must not fill any employment openings under the contract prior to making good faith offers of employment, in positions for which the employees are qualified, to those employees employed under the predecessor contract whose employment will be terminated as a result of award of the contract or the expiration of the contract under which the employees were hired. Because the term
Proposed § 9.12(a)(2) would clarify that the successor contractor's obligation to offer a right of first refusal exists even if the successor contractor were not provided a list of the predecessor contractor's employees or if the list did not contain the names of all employees employed during the final month of contract performance.
Proposed § 9.12(a)(3) discusses how a successor contractor should determine employee eligibility for a job offer. Under this proposal, an employee would be entitled to a job offer if the employee's name is included on the certified list of all service employees working under the predecessor's contract or subcontracts during the last month of contract performance. In addition, a successor contractor would also be required to accept other reliable evidence of an employee's entitlement to a job offer. The successor contractor would be allowed to verify the information as a condition of accepting it. For example, even if an employee's name does not appear on the list of employees on the predecessor contract, an employee's assertion of an assignment to work on a contract during the predecessor's last month of performance coupled with contracting agency staff verification could constitute credible evidence of an employee's entitlement to a job offer. Similarly, an employee could demonstrate eligibility by producing a paycheck stub that identifies the work location and dates worked for the predecessor or that otherwise reflects that the employee worked on the predecessor contract during the last month of performance. The successor contractor could verify the claim with the contracting agency, the predecessor, or another person who worked at the facility, though if the successor contractor is unable to verify the claim, the paycheck stub would be considered sufficient to demonstrate eligibility absent evidence from the predecessor employer indicating otherwise.
Proposed § 9.12(a)(4) proposes to clarify that contractors and subcontractors have an affirmative obligation to ensure that any covered contracts they hold contain the contract clause. The contractor or subcontractor must notify the contracting officer as soon as possible if the contracting officer did not incorporate the required contract clause into a covered contract.
Proposed § 9.12(b) discusses the method of the job offer. Proposed § 9.12(b)(1) would require that, except as otherwise provided in part 9, a contractor must make a bona fide, express offer of employment to each qualified employee on the predecessor contract before offering employment on the contract to any other employee. To determine whether an employee is entitled to a bona fide, express offer of employment, a contractor may consider the exceptions set forth in proposed § 9.12(c) and the conditions detailed in § 9.12(d). Proposed § 9.12(b)(1) would clarify that a contractor may only use employment screening processes, such as drug tests, background checks, security clearance checks, and similar pre-employment screening mechanisms under certain circumstances. These employment screening processes may only be used when they are specifically provided for by the contracting agency, are conditions of the service contract, and are consistent with Executive Order 14055 and applicable local, state, and Federal laws. Proposed § 9.12(b)(1) also would clarify that while the results of such screenings may show that an employee is unqualified for a position and thus not entitled to an offer of employment, a contractor may not use the requirement of an employment screening process by itself to conclude an employee is unqualified because they have not yet completed that screening process. For example, a successor contractor that requires all employees to undergo a background check cannot deem predecessor employees unqualified solely because they have not completed the specific background check the successor contractor requires before receiving a job offer.
Proposed § 9.12(b)(2) discusses the time limit in which the employee has a right to accept the offer, which the contractor determines, but which in no case can be fewer than 10 business days. The obligation to offer employment to a particular employee would cease upon the employee's first refusal of a bona fide offer to employment on the contract.
Proposed § 9.12(b)(3) provides the process for making the job offer. As proposed, the successor contractor would be required to make a specific oral or written employment offer to each employee. An invitation to apply for a job, for example, is not a bona fide offer. In order to ensure that the offer is effectively communicated, the successor contractor must take reasonable efforts to make the offer in a language that each worker understands. The proposed rule contains an example of how if the successor contractor holds a meeting for a group of employees on the predecessor contract, it could satisfy this provision by having a co-worker or other person translate for employees who are not fluent in English. Where offers are not made in person, the offers should be sent by registered or certified mail to the employees' last known address or by any other means normally ensuring delivery. Examples of such other means include, but are not limited to, email to the last known email address, delivery to the last known address by commercial courier or express delivery services, or by personal service to the last known address.
Proposed § 9.12(b)(4) would clarify that the employment offer may be for a different job position on the contract. More specifically, an offer of employment on the successor's contract would generally be presumed to be a bona fide offer of employment, even if it were not for a position similar to the one the employee previously held, if it were for a position for which the employee were qualified. If a question arises concerning an employee's qualifications, that question would be decided based upon the employee's education and employment history, with particular emphasis on the employee's experience on the predecessor contract. A contractor would have to base its decision regarding an employee's qualifications on reliable information provided by a knowledgeable source, such as the predecessor contractor, the local supervisor, the employee, or the contracting agency. For example, an oral or written outline of job duties or skills used in prior employment, school transcripts, or copies of relevant certificates and diplomas all would be credible information.
Proposed § 9.12(b)(5) would allow for an offer of employment to a position providing different employment terms and conditions than the employee held with the predecessor contractor, provided the offer is still bona fide,
In § 9.12(b)(6), the Department proposes to repeat, in part, the statement in section 3(b) of Executive Order 14055 that nothing in the order should be interpreted as requiring or recommending that contractors, subcontractors, or contracting agencies must pay relocation costs for employees of predecessor contractors hired pursuant to their exercise of their rights under the order. The Department proposes similar language, directed at contracting agencies specifically, in § 9.11(c)(3). The Department notes that this language does not forbid the voluntary payment of relocation expenses or the payment of any such expenses if they are otherwise required by contract or law. Proposed § 9.12(b)(7) would provide that, where an employee is terminated under circumstances suggesting the offer of employment may not have been bona fide, the facts and circumstances of the offer and the termination would be closely examined to determine whether the offer was bona fide.
Proposed § 9.12(b)(8) would provide requirements for successor contractors for proceeding when the contracting agency retroactively incorporates the nondisplacement clause into a contract after the successor contractor has already begun performance on the contract. Pursuant to proposed § 9.11(f), when the nondisplacement contract clause has been erroneously excluded from a contract, contracting agencies would be required to retroactively incorporate it. Upon retroactive incorporation, the successor contractor would be required to offer a right of first refusal of employment to the employees on the predecessor contract in accordance with the requirements of Executive Order 14055 and this part. Consistent with proposed § 9.11(f), proposed § 9.12(b)(8) acknowledges that the Administrator may exercise their discretion and require only prospective application of the contract clause in certain circumstances. In such cases, the successor contractor and its subcontractors would be required to provide employees on the predecessor contract a right of first refusal for any positions that remain open. In the event of a vacancy within 90 calendar days of the first date of contract performance, under proposed § 9.12(b)(8), the successor contractor and its subcontractors would be required to provide the employees under the predecessor contract the right of first refusal as well, regardless of whether incorporation of the contract clause is retroactive or prospective. The Department believes these requirements strike an appropriate balance between the interests of the employees on the predecessor and successor contracts.
Proposed § 9.12(c) addresses the exceptions to the general obligation to offer employment under Executive Order 14055. The exceptions would be included in the contract clause established in section 3 of the Order and are distinct from the exclusions and agency exceptions discussed in proposed § 9.4. The exclusions and agency exceptions specify both certain classes of contracts and certain employees that either would be or may be excluded from the provisions of Executive Order 14055. In contrast, the exceptions in proposed § 9.12(c)—exceptions from the successor contractor's obligation to offer employment on a contract to employees on the predecessor contract prior to making an offer to anyone else—would not relieve the contractor of other requirements of this part (
Under proposed § 9.12(c)(1), a successor contractor or subcontractor would not be required to offer employment to any employee of the predecessor whom the predecessor contractor will retain. The successor contractor is required to presume that all employees hired to work under a predecessor's Federal service contract would be terminated as a result of the award of the successor contract, unless the successor contractor can demonstrate a reasonable belief to the contrary, based upon reliable information provided by a knowledgeable source, such as the predecessor contractor, the employee, or the contracting agency.
Under proposed § 9.12(c)(2), the successor contractor or subcontractor would not be required to offer employment to any worker on the predecessor contract who is not a service employee. Consistent with the definition of service employee in proposed § 9.2, this exception would apply to a person employed on the predecessor contract in a bona fide executive, administrative, or professional capacity, as those terms are defined in 29 CFR part 541. The successor contractor would be required to presume that all workers appearing on the list required by § 9.12(e) or who have demonstrated they should have been included on the list were service employees, unless the successor contractor can demonstrate a reasonable belief to the contrary, based upon reliable information provided by a knowledgeable source, such as the predecessor contractor, the employee, or the contracting agency. Information regarding the general business practices of the predecessor contractor or the industry would not be sufficient for purposes of this exception.
Under proposed § 9.12(c)(3), a successor contractor or subcontractor would not be required to offer employment to any employee on the predecessor contract if the successor contractor or any of its subcontractors reasonably believes, based on reliable evidence of the particular employee's past performance, that there would be just cause to discharge the employee if employed by the successor contractor or any subcontractors. Again, the successor contractor would be required to presume that there is no just cause to discharge any employees working under the predecessor contract in the last month of performance, unless the successor contractor can demonstrate a reasonable belief to the contrary, based upon reliable evidence provided by a
Under proposed § 9.12(c)(4), a successor contractor or subcontractor would not be required to offer employment to a service employee that provided services under both a predecessor's Federal service contract and one or more nonfederal service contracts as part of a single job, provided that the employee was not deployed in a manner that was designed to avoid the purposes of this part. The successor contractor would be required to presume that all employees hired to work under a predecessor's Federal service contract did not work on one or more nonfederal service contracts as part of a single job, unless the successor could demonstrate a reasonable belief to the contrary, based upon reliable evidence provided by a knowledgeable source, such as the predecessor contractor, the local supervisor, the employee, or the contracting agency. In making such a reasonable determination, the successor must also reasonably determine that the predecessor did not deploy workers to both Federal and non-federal contractors purposely to evade the requirements of this part. Information regarding the general business practices of the predecessor contractor or the industry would not be sufficient for purposes of this exception. Knowledge that contractors generally deploy workers to both Federal and other clients would not be sufficient for the successor to claim the exception, because such general practices may not have been observed on the particular predecessor contract.
For example, claims from several employees who state a janitorial contractor reassigned its janitorial workers who previously worked exclusively in a Federal building to both Federal and other clients as part of a single job may indicate that the predecessor deployed workers to avoid the purposes of the nondisplacement provisions, which include Federal interests in economy and efficiency that would be served when the successor hires the predecessor's employees. Conversely, where the employees on the predecessor contract were traditionally deployed to Federal and nonfederal service work as part of their job, the successor would not be required to offer employment to the workers.
Proposed § 9.12(d) addresses the provision in paragraph (a) of Executive Order 14055's contract clause that allows the successor contractor to reduce staffing. Proposed § 9.12(d)(1) recognizes that the contractor or subcontractor may determine the number of employees necessary for efficient performance of the contract and, for bona fide staffing or work assignment reasons, permits the successor contractor or subcontractor to elect to employ fewer employees than the predecessor contractor employed in performance of the work. Thus, generally, the successor contractor or subcontractor would not be required to offer employment on the contract to all employees on the predecessor contract, but must offer employment to the number of eligible employees the successor contractor believes would be necessary to meet its anticipated staffing pattern. However, where a successor contractor does not offer employment to all the predecessor contract employees, the obligation to offer employment would continue for 90 calendar days after the successor contractor's first date of performance on the contract. The contractor's obligation under this part would end either when all of the predecessor contract employees have received a bona fide job offer or when 90 calendar days have passed from the successor contractor's first date of performance on the contract. The proposed regulation provides several examples to demonstrate the principle.
A successor prime contractor may choose to use a different configuration of subcontractors than the predecessor prime contractor, but any change in the number of subcontracts or the scope of work that particular subcontractors perform does not by itself constitute reduced staffing under proposed § 9.12(d) or otherwise alter the requirements of Executive Order 14055 and this part. Consistent with proposed § 9.13, a prime contractor is responsible for ensuring that all qualified service employees working under the predecessor contract (whether they were employed directly by the predecessor prime contractor or by any subcontractors working under the predecessor contract) receive an offer of employment under the successor contract in accordance with the requirements of Executive Order 14055 and this part. Where a prime successor contractor chooses to use subcontractors, the prime contractor is responsible for ensuring that any of its subcontractors and lower-tier subcontractors offer employment to employees employed under the predecessor contract (including the predecessor subcontracts) in accordance with the requirements of Executive Order 14055 and this part. Where a prime successor contractor chooses to use fewer subcontractors than the predecessor prime contractor used, and instead chooses to employ more workers directly, the prime successor contractor must offer direct employment to the number of eligible employees employed under the predecessor contract (including workers employed by predecessor subcontractors) necessary to meet the prime successor contractor's anticipated staffing pattern and as otherwise required by Executive Order 14055 and this part.
Proposed § 9.12(d)(2) acknowledges that in some cases a successor contractor may reconfigure the staffing pattern to increase the number of employees employed in some positions while decreasing the number of employees in others. In such cases, proposed § 9.12(d)(2) would require the successor contractor to examine the qualifications of each employee in order to offer the greatest possible number of predecessor contract employees positions equivalent to those they held under the predecessor contract, thereby
Proposed § 9.12(d)(3) clarifies that subject to provisions of this part and other applicable restrictions (including non-discrimination laws and regulations), the successor contractor may determine to which employees it will offer employment. Consistent with proposed § 9.1(b), this paragraph is not to be construed to excuse noncompliance with any applicable Executive order, regulation, or Federal, state, or local laws. For example, a contractor could not use this provision to justify unlawful discrimination against any worker. While WHD would not make determinations regarding Federal contractors' compliance with nondiscrimination requirements administered by other agencies, a finding by the Department's Office of Federal Contract Compliance Programs, another agency, or by a court that a contractor has unlawfully discriminated against a worker would be considered in determining whether the discriminatory action has also violated the nondisplacement requirements.
Proposed § 9.12(e) specifies an incumbent contractor's obligations near the end of the contract. Proposed § 9.12(e)(1) would require a contractor to, no less than 30 calendar days before completion of the contractor's performance of services on a contract, furnish the contracting officer a list of the names of all service employees under the contract and its subcontracts at that time. This list must also contain the anniversary dates of employment for each service employee under the contract and its predecessor contracts with either the current or predecessor contractors or their subcontractors. A service employee is considered employed under the contract if they are in a leave status with the predecessor prime contractor or any of its subcontractors, whether paid or unpaid, and whether for medical or other reasons, during the last month of contract performance. Proposed § 9.12(e)(1) would allow a contractor to satisfy these requirements using the list it submits or that it plans to submit to satisfy the requirements of the SCA contract clause specified at 29 CFR 4.6(l)(2), assuming there are no changes to the workforce before the contract is completed.
Where changes to the workforce are made after the submission of this certified list pursuant to proposed § 9.12(e)(1), proposed § 9.12(e)(2) would require a contractor to furnish the contracting officer a certified list of the names of all service employees working under the contract and its subcontracts during the last month of contract performance not less than 10 business days before completion of the contract. This list must include the anniversary dates of employment with either the current or predecessor contractors or their subcontractors, and, where applicable, dates of separation of each service employee. The contractor may use the list submitted to satisfy the requirements of the SCA contract clause specified at 29 CFR 4.6(l)(2) to meet this provision.
Proposed § 9.12(e)(3) requires the predecessor contractor to, before contract completion, provide written notice to service employees employed under the predecessor contractor of their possible right to an offer of employment on the successor contract. Such notice must be either posted in a conspicuous place at the worksite or delivered to the employees individually. The text of the proposed notice is set forth in the Appendix B to part 9. The Department intends to translate the notice into several common foreign languages and make the English and translated versions available online in a poster format to allow easy access. Another form with the same information may be used. Proposed § 9.12(e)(3) further explains that where the predecessor contractor's workforce is comprised of a significant portion of workers who are not fluent in English, the notice must be provided in both English and a language in which the employees are fluent. Multiple foreign language notices would be required to be provided where significant portions of the workforce speak different foreign languages and there is no common language. If, for example, a significant portion of a workforce speaks Korean and another significant portion of the same workforce speaks Spanish, then the information must be provided in English, Korean, and Spanish. If there is a question of whether a portion of the workforce is significant and the Department has a poster in the language common to those workers, the notice should be posted in that language. The Department solicits comments on whether it should establish a percentage threshold for determining what constitutes a “significant portion of the workforce.”
Proposed § 9.12(f) addresses recordkeeping requirements. Proposed § 9.12(f)(1) clarifies that this part prescribes no particular order or form of records for contractors, and that the recordkeeping requirements apply to all records regardless of their format (
Proposed § 9.12(f)(2) specifies the records contractors must maintain, including copies of any written offers of employment or a contemporaneous written record of any oral offers of employment, including the date, location, and attendance roster of any employee meeting(s) at which the offers were extended, a summary of each meeting, a copy of any written notice that may have been distributed, and the names of the employees from the predecessor contract to whom an offer was made. Proposed § 9.12(f)(2) also requires contractors to maintain a copy of any record that forms the basis for any exclusion or exception claimed under this part, the employee list provided to the contracting agency, and the employee list received from the contracting agency. In addition, every contractor that makes retroactive payment of wages or compensation under the supervision of WHD pursuant to proposed § 9.23(b) would be required to record and preserve as an entry in the pay records the amount of such payment to each employee, the period covered by the payment, and the date of payment to each employee, and to report each such payment on a receipt form authorized by WHD. Finally, proposed § 9.12(f)(2) requires contractors to maintain evidence of any notices that they have provided to workers, or workers' collective bargaining representatives, to satisfy the requirements of the order or these regulations. These would include records of notices of the possibility of employment on the successor contract that are required under § 9.12(e)(3) of the regulations; notices of agency exceptions that a contracting agency requires a contractor to provide under § 9.5(g) of the regulations and section 6(b) of the order; and notices that a contracting agency has declined to include location continuity requirements or preferences in a solicitation, pursuant to § 9.11(c)(3) of the regulations. WHD will use the records that are retained pursuant to § 9.12(f)(2) in determining a contractor's compliance and whether debarment is warranted. All contractors must retain the records listed in proposed § 9.12(f)(2) for at least 3 years from the date the records were created and must provide copies of such records upon request of any authorized representative of the contracting agency or the Department.
Proposed § 9.12(g) outlines the contractor's obligations to cooperate
Proposed § 9.13(a) discusses the responsibilities and liabilities of prime contractors and subcontractors with respect to subcontractor compliance with the nondisplacement clause. The proposed section would require prime contractors to ensure the inclusion of the nondisplacement clause contained in Appendix A in any subcontracts and would require any subcontractors to include the nondisplacement clause in Appendix A in any lower-tier subcontracts. Requiring that the contract clause be inserted in all subcontracts, including lower-tier subcontracts, notifies subcontractors of their obligation to provide employees the right of first refusal and of the enforcement methods WHD may use when subcontractors are found to be in violation of the Executive order, including the withholding of contract funds.
Proposed § 9.13(a) also clarifies that prime contractors would be responsible for the compliance of any subcontractor or lower-tier subcontractor with the contract clause in Appendix A. In the event of a violation of the contract clause, both the prime contractor and any subcontractor(s) responsible would be held jointly and severally liable. The prime contractors' contractual liability for subcontractor violations would be a strict liability that would not require that the prime contractor knew of or should have known of the subcontractors' violations. The requirements of this proposed section would ensure contractors cannot avoid the requirements of part 9 by subcontracting the work to other contractors. Thus, this section helps to ensure that all covered contractors and subcontractors of any tier are subject to the requirements of Executive Order 14055 and this part, and that employees receive the protections of the order and this part regardless of whether they are employed by the prime contractor or a subcontractor of any tier.
Proposed § 9.13(b) explains a prime contractor's responsibility to a subcontractor's employees when it discontinues the services of a subcontractor at any time during the contract and performs those services itself. Specifically, under this proposed section, the prime contractor must offer employment to qualified employees of the subcontractor who would otherwise be displaced.
Section 8 of Executive Order 14055, titled “Enforcement,” grants the Secretary “authority to investigate potential violations of, and obtain compliance with, this order.” 86 FR 66399. This proposed subpart addresses the process for filing complaints, investigations, and remedies and penalties for violations.
The Department proposes a procedure for filing complaints in § 9.21. Section 9.21(a) outlines the procedure to file a complaint with any office of WHD. It additionally provides that a complaint may be filed orally or in writing and that WHD will accept a complaint in any language. Section 9.21(b) states the well-established policy of the Department with respect to confidential sources.
Proposed § 9.22(a), which outlines WHD's investigative authority, would permit the Administrator to initiate an investigation either as the result of a complaint or at any time on the Administrator's own initiative. As part of the investigation, the Administrator would be able to inspect the relevant records of the relevant contractors (and make copies or transcriptions thereof) as well as interview representatives and employees of those contractors. The Administrator would additionally be able to interview any of the contractors' workers at the worksite during normal work hours and require the production of any documents or other evidence deemed necessary for inspection to determine whether a violation of this part (including conduct warranting imposition of debarment pursuant to § 9.23(d) of this part) has occurred. The section would also require Federal agencies and contractors to cooperate with authorized representatives of the Department in the inspection of records, in interviews with workers, and in all aspects of investigations. This section is consistent with WHD's investigative authority under the acts administered by WHD.
Proposed § 9.22(b) addresses subsequent investigations and allows the Administrator to conduct a new investigation or issue a new determination if the Administrator concludes the circumstances warrant additional action. Situations where additional action may be warranted include, for example, situations where proceedings before an Administrative Law Judge (ALJ) reveal that there may have been violations with respect to other employees of the contractor, where imposition of ineligibility sanctions is appropriate, or where the contractor has failed to comply with an order of the Secretary.
Proposed § 9.23 discusses remedies and sanctions for violations of Executive Order 14055 and this part. Proposed § 9.23(a) reiterates the authority granted to the Secretary in section 8 of Executive Order 14055, providing the Secretary the authority to issue orders prescribing appropriate sanctions and remedies, including, but not limited to, requiring the contractor to offer employment to employees from the predecessor contract and payment of wages lost.
Proposed § 9.23(b) provides that, in addition to satisfying any costs imposed by an administrative order under proposed §§ 9.34(j) or 9.35(d), a contractor that violates part 9 would be required to take appropriate action to remedy the violation, which could include hiring the affected employee(s) in a position on the contract for which the employee is qualified, together with compensation (including lost wages and interest) and other terms, conditions, and privileges of that employment. Proposed § 9.23(b) would also require the contractor to pay interest on any underpayment of wages. A payment of interest is consistent with the instruction in section 8 of the Executive order that the Secretary will have the authority to issue final orders prescribing appropriate sanctions and remedies. The payment of interest is an appropriate remedial measure to make a worker fully whole with a back-pay award. The proposed language provides that interest would be calculated from the date of the underpayment or loss, using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621, and would be compounded daily. Various OSHA whistleblower regulations use the tax underpayment rate and daily compounding because that accounting best achieves the make-
Proposed § 9.23(c) addresses the withholding of contract funds for non-compliance. Under proposed § 9.23(c)(1), the Administrator may direct that payments due on the contract or any other contract between the contractor and the Federal Government be withheld in such amounts as may be necessary to pay unpaid wages or to provide other appropriate relief. Proposed § 9.23(c)(1) permits the cross-withholding of monies due. Cross-withholding is a procedure through which contracting agencies withhold monies due a contractor from contracts other than those on which the alleged violations occurred, and it applies to require withholding regardless of whether the contract on which monies are to be withheld is held by a different agency from the agency that held the contract on which the alleged violations occurred. The provision further provides that where monies are withheld, upon final order of the Secretary that unpaid wages or other monetary relief are due, the Administrator may direct that withheld funds be transferred to the Department for disbursement. Withholding is a long-established remedy for a contractor's failure to fulfill its labor standards obligations under the SCA. The SCA provides for withholding to ensure the availability of monies for the payment of back wages to covered workers when a contractor or subcontractor has failed to pay the full amount of required wages. 29 CFR 4.6(i). The Department believes that withholding will be an important enforcement tool to effectively enforce the requirements of Executive Order 14055.
Proposed § 9.23(c)(2) similarly provides for the suspension of the payment of funds if the contracting officer or the Administrator finds that the predecessor contractor has failed to provide the required list of service employees working under the contract and its subcontracts as required by § 9.12(e). Proposed § 9.23(c)(3) clarifies that if the Administrator directs a contracting agency to withhold funds from a contractor pursuant to § 9.23(c), the Administrator or contracting agency must notify the affected contractor.
Proposed § 9.23(d) provides for debarment from Federal contract work for up to 3 years for noncompliance with any order of the Secretary or for willful violations of Executive Order 14055 or the regulations in this part. The proposed provision provides that a contractor would have the opportunity for a hearing before an order of debarment is carried out and before the contractor is included on a published list of contractors subject to debarment. Like withholding, debarment is a long-established remedy for a contractor's failure to fulfill its labor standard obligations under the SCA. 41 U.S.C. 6706(b); 29 CFR 4.188(a). The possibility that a contractor will be unable to obtain government contracts for a fixed period of time due to debarment promotes contractor compliance with the SCA, and the Department expects such a remedy would enhance contractor compliance with Executive Order 14055 as well.
Proposed § 9.23(e) states that the Administrator may require a contractor to provide any relief appropriate, including employment, reinstatement, promotion, and the payment of lost wages, including interest, when the Administrator finds that a contractor has interfered with the Administrator's investigation or has in any manner discriminated against any person because they cooperated in the Administrator's investigation or attempted to exercise any rights afforded them under this part. The Department believes that such a provision would help ensure effective enforcement of Executive Order 14055, as effective enforcement requires worker cooperation. Consistent with the Supreme Court's observation in interpreting the scope of the FLSA's antiretaliation provision, enforcement of Executive Order 14055 will depend “upon information and complaints received from employees seeking to vindicate rights claimed to have been denied.”
While Section 8 of the order authorizes the Secretary to prescribe appropriate sanctions and remedies, the Department does not interpret this affirmative direction to the Secretary to limit contracting agencies from employing any sanctions or remedies otherwise available to them under applicable law or to limit contracting agencies from including noncompliance with nondisplacement contractual or regulatory provisions in past performance reports.
Proposed subpart D addresses informal and formal proceedings to determine compliance with the requirements of part 9 and resolution of disputes.
Proposed § 9.31(a) provides that when an investigation is completed, the Administrator would issue a written determination of whether a violation occurred. A written determination would contain a statement of the investigation findings and would address the appropriate relief and the issue of debarment where appropriate. Notice of the determination would be sent by registered or certified mail to the parties' last known address or by any other means normally ensuring delivery. Examples of such other means include, but are not limited to, email to the last known email address, delivery to the last known address by commercial courier or express delivery services, or by personal service to the last known address. As has been recently highlighted during the COVID-19 pandemic, while registered or certified mail may generally be a reliable means of delivery, in some circumstances other delivery methods may be just as reliable or even more successful at assuring delivery. This flexibility would allow the Department to choose methods to ensure that the necessary notifications are effectively delivered to the parties.
Proposed § 9.31(b)(1) explains that where the Administrator has concluded that relevant facts are in dispute, the notice of determination would advise that the Administrator's determination becomes the final order of the Secretary and is not appealable in any administrative or judicial proceeding unless a request for a hearing is sent within 20 calendar days of the date of the Administrator's determination, in
Proposed § 9.31(b)(2) would apply to situations where the Administrator has concluded that there are no relevant facts in dispute. The Administrator would advise the parties and their representatives, if any, that the Administrator has concluded that no relevant facts are in dispute and that the determination will become the final order of the Secretary and will not be appealable in any administrative or judicial proceeding unless a petition for review is properly filed within 20 days of the date of the determination with the Administrative Review Board (ARB). The Administrator's determination would also advise that if an aggrieved party disagrees with the Administrator's factual findings or believes there are relevant facts in dispute, the party may advise the Administrator of the disputed facts and request a hearing by letter or by any other means normally assuring delivery, sent within 20 calendar days of the date of the Administrator's determination. Upon such a request, the Administrator will either refer the request for a hearing to the Chief Administrative Law Judge or notify the parties and their representatives of the Administrator's determination that there are still no relevant issues of fact and that a petition for review may be filed with the ARB in accordance with proposed § 9.32(b)(2).
Proposed § 9.32 provides procedures for requesting appeals. Proposed § 9.32(a) provides that any party desiring review of the Administrator's determination, including judicial review, must first request a hearing with an ALJ or file a petition for review with the ARB, as appropriate, in accordance with the requirements of proposed § 9.31(b) of this part.
Proposed § 9.32(b)(1)(i) states that any aggrieved party may request a hearing by an ALJ within 20 days of the date of the determination of the Administrator. To request a hearing, the aggrieved party must send the request to the Chief Administrative Law Judge (ALJ) of the Office of Administrative Law Judges (OALJ) by letter or by any other means normally assuring delivery and the request must include a copy of the Administrator's determination. The proposed section further requires that the party send a copy of the request for hearing to the complainant(s) or successor contractor, and their representatives, if any, and to the Administrator and the Associate Solicitor.
Proposed § 9.32(b)(1)(ii) provides that a complainant or any other interested party may request a hearing where the Administrator determines that there is no basis for a finding that the employer has committed violations(s), or where the complainant or other interested party believes that the Administrator has ordered inadequate monetary relief. The proposed section explains that in such a proceeding, the party requesting the hearing would be the prosecuting party and the employer would be the respondent. The Administrator may intervene in the proceeding as a party or as amicus curiae at any time at the Administrator's discretion. Proposed § 9.32(b)(1)(iii) provides that the employer or any other interested party may request a hearing where the Administrator determines, after investigation, that the employer has committed violation(s). The proposed section provides that in such a proceeding, the Administrator would be the prosecuting party and the employer would be the respondent.
Proposed § 9.32(b)(2)(i) explains that any aggrieved party desiring a review of the Administrator's determination in which there were no relevant facts in dispute, or of an ALJ's decision, must file a petition for review with the ARB within 20 calendar days of the date of the determination or decision. The petition must be served on all parties, including the Chief ALJ if the case involves an appeal from an ALJ's decision. Proposed § 9.32(b)(2)(ii)(A) and (B) state that a petition for review must refer to the specific findings of fact, conclusions of law, or order at issue and that copies of the petition and all briefs filed by the parties must be served on the Administrator and the Associate Solicitor. Proposed § 9.32(b)(2)(ii)(C) further provides that if a timely request for a hearing or petition for review is filed, the Administrator's determination or the ALJ's decision, as appropriate, would be inoperative unless and until the ARB issues an order affirming the determination or decision, or the determination or decision otherwise becomes a final order of the Secretary. If a petition for review concerns only the imposition of debarment, however, the remainder of the decision would be immediately effective. The proposed section clarifies that no judicial review would be available to parties unless a petition for review to the ARB is first filed.
In order to resolve disputes by efficient and informal alternative dispute resolution methods to the extent practicable, proposed § 9.33 generally encourages parties to use settlement judges to mediate settlement negotiations pursuant to the procedures and requirements of 29 CFR 18.13. Proposed § 9.33 also provides that the assigned administrative law judge must approve any settlement agreement reached by the parties consistent with the procedures and requirements of 29 CFR 18.71.
Proposed § 9.34(a) provides for the OALJ to hear and decide in its discretion appeals concerning questions of law and fact from determinations of the Administrator issued under proposed § 9.31. The ALJ assigned to the case would act fully and finally as the authorized representative of the Secretary, subject to any appeal filed with the ARB, and subject to certain limits.
Proposed § 9.34(a)(2) details the limits on the scope of review for proceedings before the ALJ. Proposed § 9.34(a)(2)(i) would exclude from the ALJ's authority any jurisdiction to pass on the validity of any provision of part 9. Proposed § 9.34(a)(2)(ii) provides that the Equal Access to Justice Act (EAJA), as amended, 5 U.S.C. 504, would not apply to proceedings under part 9. The proceedings proposed in subpart D are not required by an underlying statute to be determined on the record after an opportunity for an agency hearing. Therefore, an ALJ has no authority to award attorney fees and/or other litigation expenses pursuant to the provisions of the EAJA for any proceeding under part 9.
Proposed § 9.34(b) states that absent a stay to attempt settlement, the ALJ would notify the parties and any representatives within 15 calendar days following receipt of the request for hearing of the day, time, and place for hearing. The hearing would be held within 60 days from the date of receipt of the hearing request under proposed § 9.34(b).
Proposed § 9.34(c) provides that the ALJ may dismiss a party's challenge to a determination of the Administrator if the party or the party's representative requests a hearing and fails to attend the hearing without good cause. Proposed § 9.34(c) also provides that the ALJ may dismiss a challenge to a determination of the Administrator if a party fails to comply with a lawful order of the ALJ.
Under proposed § 9.34(d), the Administrator would have the right, at the Administrator's discretion, to participate as a party or as amicus curiae at any time in the proceedings. This would include the right to petition for review of an ALJ's decision in a case in which the Administrator has not previously participated. The Administrator would be required to participate as a party in any proceeding in which the Administrator has determined that part 9 has been violated, except where the proceeding only concerns a challenge to the amount of monetary relief awarded.
Under proposed § 9.34(e), a Federal agency that is interested in a proceeding would be able to participate as amicus curiae at any time in the proceedings. The proposed section also states that copies of all pleadings in a proceeding must be served on the interested Federal agency at the request of such Federal agency, even if the Federal agency is not participating in the proceeding.
Proposed § 9.34(f) provides that copies of the request for hearing under this part would be sent to the WHD Administrator and the Associate Solicitor, regardless of whether the Administrator is participating in the proceeding.
With certain exceptions, proposed § 9.34(g) would apply the rules of practice and procedure for administrative hearings before the OALJ at 29 CFR part 18, subpart A, to administrative proceedings under this part 9. The exceptions provide that part 9 would be controlling to the extent it provides any rules of special application that may be inconsistent with the rules in part 18, subpart A. In addition, proposed § 9.34(g) provides that the Rules of Evidence at 29 CFR part 18, subpart B, would be inapplicable to administrative proceedings under this part. This proposed section clarifies that rules or principles designed to assure production of the most probative evidence available would be applied, and that the ALJ may exclude immaterial, irrelevant, or unduly repetitive evidence.
Proposed § 9.34(h) would require ALJ decisions (containing appropriate findings, conclusions, and an order) to be issued within 60 days after completion of the proceeding and to be served upon all parties to the proceeding.
Under proposed § 9.34(i), upon the issuance of a decision that a violation has occurred, the ALJ would order the successor contractor to take appropriate action to remedy the violation. The remedies may include ordering the successor contractor to hire each affected employee in a position on the contract for which the employee is qualified, together with compensation (including lost wages), terms, conditions, and privileges of that employment. If the Administrator has sought debarment, the order would also be required to address whether debarment is appropriate.
Proposed § 9.34(j) would allow the ALJ to assess against a successor contractor a sum equal to the aggregate amount of all costs (not including attorney fees) and expenses reasonably incurred by the aggrieved employee(s) in the proceeding when an order finding the successor contractor violated part 9 is issued. This amount would be awarded in addition to any unpaid wages or other relief due.
Proposed § 9.34(k) provides that the ALJ's decision would become the final order of the Secretary, unless a timely appeal is filed with the ARB.
Proposed § 9.35 describes the ARB's jurisdiction and provides the procedures for appealing an ALJ decision to the ARB under Executive Order 14055.
Proposed § 9.35(a)(1) states the ARB has jurisdiction to hear and decide in its discretion appeals from the Administrator's determinations issued under § 9.31, and from ALJ decisions issued under § 9.34.
Proposed § 9.35(a)(2) identifies the limitations on the ARB's scope of review, including a restriction on passing on the validity of any provision of part 9, a general prohibition on receiving new evidence in the record (because the ARB is an appellate body and must decide cases before it based on substantial evidence in the existing record), and a bar on granting attorney fees or other litigation expenses under the EAJA.
Proposed § 9.35(b) provides that the ARB would issue a final decision within 90 days following receipt of the petition for review and would serve the decision by mail on all parties at their last known address, and on the Chief ALJ, if the case involves an appeal from an ALJ's decision.
Proposed § 9.35(c) requires the ARB's order to mandate action to remedy the violation if the ARB concludes a violation occurred. Such action may include hiring each affected employee in a position on the contract for which the employee is qualified, together with compensation (including lost wages), terms, conditions, and privileges of that employment. If the Administrator has sought debarment, the ARB would be required to determine whether debarment is appropriate. Proposed § 9.35(c) also provides that the ARB's order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 or any successor to that order.
Proposed § 9.35(d) allows the ARB to assess against a successor contractor a sum equal to the aggregate amount of all costs (not including attorney fees) and expenses reasonably incurred by the aggrieved employee(s) in the proceeding. This amount would be awarded in addition to any unpaid wages or other relief due under § 9.23(b) of this part.
Proposed § 9.35(e) provides that the ARB's decision will become the Secretary's final order in the matter in accordance with Secretary's Order 01-2020 (or any successor to that order), which provides for discretionary review of such orders by the Secretary.
Section 10 of Executive Order 14055 states that if any provision of the order, or the application of any such provision to any person or circumstance, is held to be invalid, the remainder of the order and the application shall not be affected.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
This rulemaking would require the creation of a new information collection as well as modification to the burdens for an existing collection. As required by the PRA, the Department has submitted information collections, including a new information collection and a revision of an existing collection, to OMB for review to reflect new burdens and changes to existing burdens that will result from the implementation of Executive Order 14055.
Proposed § 9.12 states compliance requirements for contractors covered by Executive Order 14055. Proposed § 9.12 would require, with certain exceptions, a successor contractor and its subcontractors to make good faith employment offers to qualified service employees employed on the predecessor contract whose employment will be terminated as a result of award of the successor contract or the expiration of the predecessor contract. Proposed § 9.12(e) would require a predecessor contractor to furnish the contracting officer a certified list of the names of all service employees working under the contract and its subcontracts during the last month of contract performance. Additionally, proposed § 9.12(e)(3) would require a contractor to provide service employees with written notice of their possible right to an offer of employment on a successor contract. Proposed § 9.11 would require the contracting officer to furnish that list to the successor contractor prior to the start of performance of the successor's contract. The successor contractor would then use that list to aid in satisfying the requirements of § 9.12(a). Proposed § 9.12(e)(2) permits the contractor to submit and retain the list submitted to satisfy the requirements of 29 CFR 4.6(l)(2) (see OMB Control Number 1235-0007) to meet these provisions. As contractors are already required to develop this list to comply with the SCA, the Department believes that this requirement does not impose any additional information collection requirements on contractors. However, under proposed § 9.11(c)(3), when an agency decides not to include a location continuity requirement, the agency must ensure that the contractor notifies affected workers in writing of the agency determination and the right of interested parties to request reconsideration. The contractor is required to confirm to the contracting agency that such notice was provided.
In order to verify compliance with the requirements in part 9, proposed § 9.12(f) would require contractors to maintain for 3 years copies of certain records that are subject to OMB clearance under the PRA, including (1) any written offers of employment or a contemporaneous written record of any oral offers of employment, including the date, location, and attendance roster of any employee meeting(s) at which the offers were extended; a summary of each meeting; a copy of any written notice that may have been distributed, and the names of the employees from the predecessor contract to whom an offer was made; (2) any record that forms the basis for any exclusion or exception claimed from the nondisplacement requirements; and (3) a copy of the employee list received from the contracting agency and the employee list provided to the contracting agency.
WHD obtains PRA clearance under control number 1235-0021 for an information collection covering complaints alleging violations of various labor standards that the agency already administers and enforces. An Information Collection Request (ICR) has been submitted to revise the approval to incorporate the regulatory citations in this proposed rule applicable to complaints and adjust burden estimates to reflect any increase in the number of complaints filed.
Proposed subpart D establishes administrative proceedings to resolve investigation findings. Particularly with respect to hearings, the rule would impose information collection requirements. The Department notes that information exchanged between the target of a civil or an administrative action and the agency in order to resolve the action would be exempt from PRA requirements.
OMB and the Department are particularly interested in comments that:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Total burden for the new and complaint process information collections, including the burdens that will be unaffected by this proposed rule and any changes are summarized as follows:
Under Executive Order 12866, OMB's Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the Executive Order and OMB review.
Executive Order 13563 directs agencies to, among other things, propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; that it is tailored to impose the least burden on society, consistent with obtaining the regulatory objectives; and that, in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. Executive Order 13563 recognizes that some costs and benefits are difficult to quantify and provides that, when appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. The analysis below outlines the impacts that the Department anticipates may result from this proposed rule and was prepared pursuant to the above-mentioned executive orders.
On November 18, 2021, President Joseph R. Biden, Jr. issued Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts.” 86 FR 66397 (Nov. 23, 2021). This order explains that “[w]hen a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government's procurement interests in economy and efficiency are best served when the successor contractor or
This proposed rule requires that contracting agencies incorporate into every covered Federal service contract the contract clause included in Executive Order 14055. That clause requires a successor contractor and its subcontractors to make bona fide, express offers of employment to service employees employed under the predecessor contract whose employment would be terminated with the change of contract. The required contract clause also forbids successor contractors or subcontractors from filling any contract employment openings prior to making such good faith offers of employment to employees of the predecessor contractor or subcontractor. See section II.B. for an in-depth discussion of the provisions of the Executive order.
To determine the number of firms that could potentially be affected by this rulemaking, the Department estimated a range of potentially affected firms. The more narrowly defined population (firms actively holding SCA-covered contracts) includes 119,700 firms (Table 1). The broader population (including those bidding on SCA contracts but without active contracts, or those considering bidding in the future) includes 449,200 firms.
To identify firms with SCA contracts, the Department included all firms with the “Labor Standards” element equal to “Y” for any of their contracts, meaning that the contracting agency flagged the contract as covered by the SCA. However, because this flag is often listed as “not applicable” and appears to be reported with error, the Department also included some other firms. Of the contracts not flagged as SCA, the Department excluded (1) those for the purchase of goods
In 2019, there were 86,000 unique prime contractors in USASpending that fit the parameters discussed above, and the Department has used this number as an estimate of prime contractors with active SCA contracts. However, subcontractors are also impacted by this proposed rule. The Department examined 5 years of USASpending data (2015 through 2019) and identified 33,700 unique subcontractors that did not hold contracts as prime contractors in 2019.
In total, the Department estimates 119,700 firms currently hold SCA contracts and could potentially be affected by this rulemaking under the narrow definition. Table 1 shows these firms by 2-digit NAICS code.
The Department also cast a wider net to identify other potentially affected contractors, both those directly affected (
Because SAM provides a more recent snapshot of data, the Department used February 2022 SAM data and identified 415,500 registered firms.
There are no readily available data on the number of workers working on SCA contracts; therefore, to estimate the number of these workers, the Department employed the approach used in the 2021 final rule, “Increasing the Minimum Wage for Federal Contractors,” which implements Executive Order 14026.
The Department estimated the number of potentially affected workers in two parts. First, the Department estimated employees and self-employed workers working on SCA contracts in the 50 States and the District of Columbia. Second, the Department estimated the number of SCA workers in the U.S. territories.
SCA contract employees on covered contracts were estimated by taking the ratio of covered Federal contracting expenditures to total output, by industry. Total output is the market value of the goods and services produced by an industry. This ratio is then applied to total private employment in that industry (Table 2).
To estimate SCA contracting expenditures, the Department used USASpending.gov data and the same methodology as used above for estimating affected firms. The Department included all contracts with
To determine the share of all output associated with SCA contracts, the Department divided contracting expenditures by gross output, in each 2-digit NAICS code.
According to this methodology, the Department estimated there are 1.4 million workers on SCA covered contracts in the 50 States and the District of Columbia (see Table 2 below). This methodology represents the number of year-round-equivalent potentially affected workers who work exclusively on SCA contracts. Thus, when the Department refers to potentially affected employees in this analysis, the Department is referring to this conceptual number of people working exclusively on covered contracts. The total number of potentially affected workers will likely exceed this number because not all workers work exclusively on SCA contracts. However, some of the total number of potentially affected workers may not be covered by this rulemaking.
The methodology used to estimate potentially affected workers in certain U.S. territories (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands) is similar to the methodology used above for the 50 States and the District of Columbia. The primary difference is that data on gross output in the U.S. territories are not available, and so the Department had to make some additional assumptions. The Department approximated gross output in the U.S. territories by calculating the ratio of gross output to Gross Domestic Product (GDP) for the U.S. (1.5), then multiplying that ratio by GDP in each territory to estimate total gross output.
The rest of the methodology follows the methodology for the 50 States and the District of Columbia. To determine the share of all output associated with SCA contracts, the Department divided contract expenditures from USASpending.gov, for each territory, by gross output. The Department then multiplied the ratio of covered contract spending to gross output by private sector employment (from the OEWS) to estimate the number of workers working on covered contracts (9,900).
Because there is no readily available data source on workers on SCA contracts, and employment is spread throughout many industries, the Department was unable to provide any estimates of demographic information for potentially affected workers. The Department welcomes any data sources that would allow it to analyze the demographic composition of SCA contract workers, so that it can better assess any equity impacts of this rulemaking.
The proposed rule would impose direct costs on some covered contractors that will review the regulations to understand their responsibilities. Both firms that currently hold contracts that may be awarded to a successor contractor in the future and firms that are considering bidding on an SCA contract may be interested in reviewing this rule, so the Department used the upper-bound estimate of 449,168 potentially affected firms to calculate rule familiarization costs. This is an overestimate, because not all of the firms that are registered in SAM are predecessor contractors or will bid on an SCA contract. Those that are not interested in bidding would not need to review the rule.
The Department estimates that, on average, 30 minutes of a human resources staff member's time will be spent reviewing the rulemaking. Some firms will spend more time reviewing the rule, but as discussed above, many others will spend less or no time reviewing the rule, so the Department believes that this average estimate is appropriate. Many firms will also just rely on third-party summaries of the rule or the comprehensive compliance assistance materials published by the Department. This rule is also substantially similar to the 2011 final rule implementing Executive Order 13495 (Nondisplacement of Qualified Workers Under Service Contracts), with which many firms were already familiar. Thus, this proposed regulation would not introduce an entirely novel policy that would require substantively more time for rule familiarization. This time estimate only represents the cost of reviewing the rule; any implementation costs are calculated separately below. The cost of this time is the median loaded wage for a Compensation, Benefits, and Job Analysis Specialist of $50.25 per hour.
This proposed rule contains various requirements for contractors. The proposal includes a contract clause provision requiring contracting agencies to ensure that service contracts and subcontracts that succeed a contract for performance of the same or similar work, and solicitations for such contracts and subcontracts, include the nondisplacement contract clause. This provision comes directly from Executive Order 14055, and the Department estimates that it will take an average of 30 minutes total for contractors to incorporate the contract clause into their covered subcontracts. This estimate is similar to the one used in the Executive Order 13495 final rule. Additionally, a contractor must notify affected workers and their collective bargaining representatives, if any, in writing of the agency's determination to grant an exception. When an agency decides not to include a location continuity requirement or preference, the contractor must notify affected workers and their collective bargaining representatives, if any, in writing of the agency's determination and the right of interested parties to request reconsideration. Additionally, predecessor contractors are required to provide written notice to service employees employed under the contract of their possible right to an offer of employment on the successor contract. The Department estimates that these requirements would take an average of 30 minutes for each contractor. The Department believes that this average estimate is appropriate because these requirements would not apply to all potentially affected contractors; they would only apply when an agency grants an exception or when the agency decides not to include a location continuity requirement or preference.
For these cost estimates, the Department used the lower-bound of potentially affected firms (119,695), because only the firms that will have a covered contract would incur these implementation costs. The cost of this time is the median loaded wage for a Compensation, Benefits, and Job Analysis Specialist of $50.25 per hour. Therefore, the Department has estimated the cost of these requirements to be $6,014,674 ($50.25 per hour × 1 hour × 119,695 contractors). This estimate is likely an overestimate, because many SCA contracts can last for several years. Therefore, only a fraction of these firms would need to include the required contract clause each year since firms only need to include the clause in new contracts (which under Executive Order
Under this proposed rule, contracting agencies would, among other things, be required to ensure contractors provide notice to employees on predecessor contracts of their possible right to an offer of employment, and consider whether performance of the work in the same locality or localities in which a predecessor contract is currently being performed is reasonably necessary to ensure economical and efficient provision of services. Contracting agencies would also be required to provide the list of employees on the predecessor contract to the successor contractor, to forward complaints and other pertinent information to WHD, and to retroactively incorporate the contract clause when it was not initially incorporated. Please see section II.B. for a more in-depth discussion of contracting agency requirements. The Department estimates that it will take the contracting agencies an extra 2.5 hours of work on average on each covered contract, and that the work will be performed by a GS 14, Step 1 Federal employee contracting officer, with a fully loaded hourly wage of $97.04.
This proposed rule would require a predecessor contractor to, no less than 30 calendar days before completion of the contractor's performance of services on a contract, furnish the contracting officer a list of the names of all service employees under the contract and its subcontracts at that time. This list must also contain the anniversary dates of employment for each service employee under the contract and its predecessor contracts with either the current or predecessor contractors or their subcontractors. If changes to the workforce are made after the submission of this certified list, this proposed rule would also require a contractor to furnish the contracting officer a certified list of the names of all service employees working under the contract and its subcontracts during the last month of contract performance not less than 10 business days before completion of the contract.
This NPRM also specifies the records successor contractors would be required to maintain, including copies of or documentation of any written or oral offers of employment, a copy of any written notice that may have been distributed, and the names of the employees from the predecessor contract to whom an offer was made. The NPRM would also require contractors to maintain a copy of any record that forms the basis for any exclusion or exception claimed, the employee list provided to the contracting agency, and the employee list received from the contracting agency.
The Department estimates that the extra time associated with keeping and providing these records, including the list of employees, to be an average of 1 hour per firm per year, and that the work will be completed by a Compensation, Benefits, and Job Analysis Specialist, at a rate of $50.25 per hour. The estimated recordkeeping cost is $6,014,674 ($50.25 per hour × 1 hour × 119,695).
Costs in Year 1 consist of $11,285,346 in rule familiarization costs, $33,968,016 in implementation costs ($6,014,674 for contractors and $27,953,342 for contracting agencies), and $6,014,674 in recordkeeping costs. Therefore, total Year 1 costs are $51,268,036. Costs in the following years consist only of implementation and recordkeeping costs and amount to $39,982,690. Average annualized costs over 10 years are $41.5 million using a 7 percent discount rate, and $50.1 million using a 3 percent discount rate.
This proposed rule requires successor contractors and subcontractors to make a bona fide, express offer of employment to each employee to a position for which the employee is qualified, and to state the time within which the employee must accept such offer. To match employees with suitable jobs under this proposed rule, successor contractors would have to spend time evaluating the predecessor contract employees and available positions. However, those successor contractors that currently hire new employees for a contract already must recruit workers and evaluate their qualifications for positions on the contract; thus, successor contractors would likely spend an equal amount of time determining job suitability under the proposed rule as under current practices. If, in the absence of this rule, a successor contractor would need to hire an entirely new workforce when it is awarded a contract, the requirement for it to make offers of employment to the predecessor contractor's workforce could save the contractor time if the predecessor contract employees hold the same positions that the successor contractor is looking to fill. It may be easier to determine job suitability for workers already working in those positions on the contract than it would be for workers who are new to both the contract and the successor contractor. The Department welcomes comments and data on these assumptions, specifically if time spent allocating employees to available positions would change as a result of this proposed rule.
Many successor contractors may already be keeping the predecessor contractor's employees on the contract, so the Executive Order and this proposed rule would not impact any existing hiring practices for these firms. The Department welcomes comments with data on how prevalent it is for successor contractors to keep the employees of the predecessor contractor.
There may be some limited cases in which the successor contractor had existing employees that it planned to assign to a newly-awarded contract, but the requirement to offer employment to predecessor contract workers would
This proposed rule would not affect wages that contractors will pay employees, because other applicable laws already establish the minimum wage rate for each occupation to be incorporated into the contract. This rule does not require successor contractors to pay wages higher than the rate required by the SCA. Executive Order 14055 and this proposed rule also do not require the successor contractor to pay workers the same wages that they were paid on the predecessor contract. Although workers' wages may increase or decrease with the changing of contracts, any change would not be a result of this proposed rule. What this rule would do is ensure that these workers have continued employment, saving them the costs of finding a new job. The requirement for successor contracts to make bona fide offers of employment could also prevent unemployment and increase job security for predecessor contract workers. This, in turn, could reduce reliance on social safety net programs and improve well-being for such workers. As discussed above, this impact could be offset in limited short-term cases in which the successor contractor has existing employees for which it is are unable to find positions because of the requirements of this proposed rule.
Executive Order 14055 states that using a carryover workforce reduces disruption in the delivery of services during the period of transition between contractors, maintains physical and information security, and provides the Federal Government with the benefits of an experienced and well-trained workforce that is familiar with the Federal Government's personnel, facilities, and requirements. A 2020 report from IBM estimated that data breaches in the public sector cost about $1.6 million per breach, and about 28 percent of data breaches are due to human error.
The requirements of the Executive Order and this proposed rule also would help reduce training costs, which can be costly for firms, and therefore for the agency that contracts with them. Training costs are a component of turnover costs. One study found a modest cost associated with employee turnover, finding 10 percent turnover is about as costly as a 0.6 percent wage increase.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
On November 18, 2021, President Joseph R. Biden, Jr. issued Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts.” 86 FR 66397 (Nov. 23, 2021). This order explains that when a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government's procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor's employees, thus avoiding displacement of these employees. The Department is issuing this proposed rule to comply with the directives of the Executive Order.
President Biden issued Executive Order 14055 pursuant to his authority under “the Constitution and the laws of the United States,” expressly including the Procurement Act. 86 FR 66397. The Procurement Act authorizes the President to “prescribe policies and directives that the President considers necessary to carry out” the statutory purposes of ensuring “economical and efficient” government procurement and administration of government property. 40 U.S.C. 101, 121(a). Executive Order 14055 directs the Secretary to issue regulations to “implement the requirements of this order.” 86 FR 66399.
In order to determine the number of small businesses that would be affected by the rulemaking, the Department followed the same methodology laid out in section V.B.1. of the economic analysis.
The proposed rule includes a contract clause provision requiring contracting agencies to ensure that service contracts and subcontracts that succeed a contract for performance of the same or similar work, and solicitations for such contracts and subcontracts, include the non-displacement contract clause. The rule also requires contracting agencies to incorporate the non-displacement contract clause in applicable contracts, ensure contractors provide notice to employees on predecessor contracts of their possible right to an offer of employment, and to consider whether performance of the work in the same locality or localities in which a predecessor contract is currently being performed is reasonably necessary to ensure economical and efficient provision of services. Contracting agencies would also be required, among other things, to provide the list of employees on the predecessor contract to the successor, to forward complaints and other pertinent information to WHD, and to retroactively incorporate the contract clause when it was not initially incorporated. See Section II.B. for a more in-depth discussion of contracting agency requirements.
This proposed rule would require a contractor to, no less than 30 calendar days before completion of the contractor's performance of services on a contract, furnish the contracting officer a list of the names of all service employees under the contract and its subcontracts at that time. This list must also contain the anniversary dates of employment for each service employee under the contract and its predecessor contracts with either the current or predecessor contractors or their subcontractors. If changes to the workforce are made after the submission of this certified list, this proposed rule would also require a contractor to furnish the contracting officer a certified list of the names of all service employees working under the contract and its subcontracts during the last month of contract performance not less than 10 business days before completion of the contract. See section II.B. for a more in-depth discussion of requirements for contractors.
This proposed rule could result in costs for small business firms in the form of rule familiarization costs, implementation costs, and recordkeeping costs. See section V.C. for an in-depth discussion of these costs.
For rule familiarization costs, the Department estimates that on average, 30 minutes of a human resources staff member's time will be spent reviewing the rulemaking. Some firms will spend more time reviewing the rule, but many others will spend less or no time reviewing the rule, so the Department believes that this average estimate is appropriate. This rule is also substantially similar to the 2011 final rule implementing Executive Order 13495, with which many firms were already familiar. The cost of this time is the median loaded wage for a Compensation, Benefits, and Job Analysis Specialist of $50.25 per hour.
For implementation costs, the Department estimates that it will take an average of 30 minutes total for contractors to incorporate the contract clause into their covered subcontracts, and another 30 minutes for the other contractor requirements discussed in Section IV.C.2. The cost of this time is the median loaded wage for a Compensation, Benefits, and Job Analysis Specialist of $50.25 per hour. Therefore, the Department has estimated the cost of including the required
For recordkeeping costs, the Department estimates that the extra time associated with keeping and providing these records to be an average of 1 hour and be completed by Compensation, Benefits, and Job Analysis Specialist of $50.25 per hour. The estimated recordkeeping cost is $50.25 per firm.
Therefore, the small firms that are impacted by this proposed rule could each have additional costs of $125.63 in Year 1 ($25.13 + $50.25 + $50.25).
As discussed in section V.C.5., the Department does not expect there to be additional costs for successor contracts associated with evaluating predecessor contract employees and available positions beyond what they already would have incurred. In absence of this proposed rule, the successor contractor would incur costs associated with hiring a new workforce and assigning them to positions on the contract. The benefits discussed in section IV.D. would also apply to small firms.
The Department is not aware of any relevant Federal rules that conflict with this NPRM.
The Department is issuing a proposed rulemaking to implement Executive Order 14055 and cannot deviate from the language of the Executive order, therefore, there are limited instances in which there is discretion to offer regulatory alternatives. However, the Department has discussed a few specific provisions here in which limited alternatives are possible.
First, in cases where a prime contract is above the simplified acquisition threshold, but their subcontract falls below this threshold, the Department could potentially have discretion to exclude these subcontracts from the requirements of this proposed rule. However, the Department believes that based on the way the Executive Order is worded, the intent was not to exclude these subcontracts.
Second, the Department has some discretion in defining the specific analysis that must be completed by contracting agencies regarding location continuity. The Department is considering whether to require contracting officers to analyze additional factors when determining whether to decline to require location continuity. Any requirement of a more in-depth analysis could potentially increase costs for contracting agencies.
There are also a few places in this proposed rule where the Department has developed additional requirements beyond what is laid out in Executive Order 14055. For example, Executive Order 14055 does not address the issue of remote work or telework, including whether it is permissible for a successor contractor to allow its incumbent employees in similar positions to use remote work or telework but not offer remote work or telework to predecessor employees in similar positions. However, based on the Department's previous enforcement experience, lack of clarity on this issue leads to confusion on the part of stakeholders and difficulties in enforcement when trying to determine whether the successor contractor has offered different employment terms and conditions to predecessor employees to discourage them from accepting employment offers. Accordingly, the Department has proposed the additional requirement that the successor contractor must offer employees of the predecessor contractor the option of remote work under reasonably similar terms and conditions, where the successor contractor has or will have any employees in the same or similar occupational classifications who work or will work entirely in a remote capacity. The Department has also proposed specific procedural guidelines for the location continuity analysis that is generally required by the text of the Executive order. Although an alternative would be to issue a proposed rule without these types of more-specific requirements, the Department believes that they are reasonably necessary to effectively implement the Executive order.
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires agencies to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing any unfunded Federal mandate that may result in excess of $100 million (adjusted annually for inflation) in expenditures in any one year by State, local, and tribal governments in the aggregate, or by the private sector. This rulemaking is not expected to impose unfunded mandates that exceed that threshold.
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism and determined that it does not have federalism implications. The proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
This proposed rule would not have tribal implications under Executive Order 13175 that would require a tribal summary impact statement. The proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Employment, Federal buildings and facilities, Government contracts, Law enforcement, Labor.
5 U.S.C. 301; section 6, E.O. 14055, 86 FR 66397; Secretary of Labor's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).
(a)
(b)
(2) The Executive order provides that executive departments and agencies, including independent establishments subject to the Federal Property and Administrative Services Act, shall, to the extent permitted by law, ensure that service contracts and subcontracts that succeed a contract for performance of the same or similar work, and solicitations for such contracts and subcontracts, include a clause that requires the contractor and its subcontractors to offer a right of first refusal of employment to service employees employed under the predecessor contract and its subcontracts whose employment would be terminated as a result of the award of the successor contract in positions for which the employees are qualified. Nothing in Executive Order 14055 or this part shall be construed to permit a contractor or subcontractor to fail to comply with any provision of any other Executive order, regulation, or law of the United States.
(c)
For purposes of this part:
(a) This part applies to any contract or solicitation for a contract with an agency, provided that:
(1) It is a contract for services covered by the Service Contract Act; and
(2) The prime contract exceeds the simplified acquisition threshold as defined in 41 U.S.C. 134.
(b) Contracts that satisfy the requirements of paragraph (a) of this section must contain the contract clause set forth at Appendix A, and all contractors on such contracts must comply, unless otherwise excluded or excepted under this part, with the requirements of §§ 9.12(e), (f), and (g).
(c) Contracts and solicitations that satisfy the requirements of paragraph (a) of this section, and that succeed a contract for performance of the same or similar work, must contain the contract clause set forth at Appendix A, and contractors on such contracts must comply, unless otherwise excluded or excepted under this part, with all the requirements of § 9.12.
(a)
(2)
(b)
(a) A contracting agency may waive the application of some or all of the provisions of this part as to a prime contract if the senior procurement executive within the agency issues a written determination that at least one of the following circumstances exists with respect to that contract:
(1) Adhering to the requirements of the order or this part would not advance the Federal Government's interest in achieving economy and efficiency in Federal procurement;
(2) Based on a market analysis, adhering to the requirements of the order or this part would:
(i) Substantially reduce the number of potential bidders so as to frustrate full and open competition, and
(ii) Not be reasonably tailored to the agency's needs for the contract; or
(3) Adhering to the requirements of the order or this part would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda.
(b) Any agency determination to exercise its exception authority under section 6 of the Executive order and paragraph (c)(1) of this section must include a specific written explanation, including the facts and reasoning supporting the determination, and must be issued no later than the solicitation date. Any agency determination to exercise its exception authority under section 6 of the Executive order and paragraph (c)(1) of this section made after the solicitation date or without a specific written explanation will be inoperative. In such a circumstance, the agency must take action, consistent with § 9.11(f), to incorporate the contract clause set forth in Appendix A of this part into the relevant solicitation or contract.
(c) In exercising the authority to grant an exception for a contract because adhering to the requirements of the order or this part would not advance economy and efficiency, the agency's written analysis must, among other things, compare the anticipated outcomes of hiring predecessor contract employees with those of hiring a new workforce. The consideration of cost and other factors in exercising the agency's exception authority must reflect the general findings in section 1 of the Executive order that the Federal Government's procurement interests in economy and efficiency are normally served when the successor contractor hires the predecessor's employees and must specify how the particular circumstances support a contrary conclusion. General assertions or presumptions of an inability to procure services on an economical and efficient basis using a carryover workforce are insufficient.
(1) Factors that the agency may consider include, but are not limited to, the following:
(i) Whether factors specific to the contract at issue suggest that the use of a carryover workforce would greatly increase disruption to the delivery of services during the period of transition between contracts (
(ii) Emergency situations, such as a natural disaster or an act of war, that physically displace incumbent employees from the location of the service contract work and make it impossible or impracticable to extend offers to hire as required by the Executive order.
(iii) Situations where the senior procurement executive reasonably believes, based on the predecessor employees' past performance, that the entire predecessor workforce failed, individually as well as collectively to perform suitably on the job and that it is not in the interest of economy and efficiency to provide supplemental training to the predecessor's workers.
(2) Factors the senior procurement executive may not consider in making an exception determination related to economy and efficiency include any general assumption that the use of carryover workforces usually or always greatly increase disruption to the delivery of services during the period of transition between contracts; the job performance of the predecessor contractor (unless a determination has been made that the entire predecessor workforce failed, individually as well as collectively); the seniority of the workforce; and the reconfiguration of the contract work by a successor contractor. The agency also may not consider wage rates and fringe benefits of service employees in making an exception determination except in the following exceptional circumstances:
(i) In emergency situations, such as a natural disaster or an act of war, that physically displace incumbent employees from the locations of the service contract work and make it impossible or impracticable to extend offers to hire as required by the Executive order;
(ii) When a carryover workforce in its entirety would not constitute an experienced and trained workforce that is familiar with the Federal Government's personnel, facilities, and requirements but rather would require extensive training to learn new technology or processes that would not be required of a new workforce; or
(iii) Other, similar circumstances in which the cost of employing a carryover workforce on the successor contract would be prohibitive.
(d) In exercising the authority to grant an exception to a contract because adhering to the requirements of the order or this part would substantially reduce the number of potential bidders so as to frustrate full and open competition, the contracting agency must carry out a market analysis. A likely reduction in the number of potential offerors indicated by market analysis is not, by itself, sufficient to except a contract from coverage under this authority unless the agency concludes that adhering to the nondisplacement requirements would diminish the number of potential offerors to such a degree that adequate competition requirements at a fair and reasonable price could not be achieved and adhering to the requirements of the order would not be reasonably tailored to the agency's needs. In finding that inclusion of the contract clause would not be reasonably tailored to the agency's needs, the agency must specify how it intends to more effectively achieve the benefits that would have been provided by a carryover workforce, including physical and information security and a reduction in disruption of services.
(e) Before exercising the authority to grant an exception to a contract because adhering to the requirements of the order or this part would otherwise be inconsistent with statutes, regulations, Executive orders, or Presidential Memoranda, the contracting agency must consult with the Department of Labor, unless the agency has regulatory authority for implementing and interpreting the statute at issue, or the Department has already issued guidance finding an exception on the basis at issue to be appropriate.
(f) Any request by interested parties for reconsideration of an agency's determination to exercise its exception authority under section 6 of the Executive order shall be directed to the head of the contracting department or agency.
(g) Section 6 of Executive Order 14055 requires that, to the extent permitted by law and consistent with national security and executive branch confidentiality interests, each agency must publish, on a centralized public website, descriptions of the exceptions it has granted under this section. Each agency must also ensure that the contractor notifies affected workers and their collective bargaining representatives, if any, in writing of the agency's determination to grant an exception. Each agency also must, on a quarterly basis, report to the Office of Management and Budget descriptions of the exceptions granted under this section.
(a)
(b)
(c)
(2) If an agency determines that performance of the contract in the same locality or localities is reasonably necessary to ensure economical and efficient provision of services, then the agency must, to the extent consistent with law, include a requirement or preference in the solicitation for the successor contract that it be performed in the same locality or localities.
(3) Agencies must complete the location continuity analysis required under paragraph (c)(1) of this section prior to the date of issuance of the solicitation. Any agency determination to decline to include a requirement or preference for location continuity in the
(4) If the successor contract will be performed in a new locality, nothing in this part requires the contracting agency or the successor contractor to pay the relocation costs of employees who exercise their right to work for the successor contractor or subcontractor under the contract clause.
(d)
(e)
(ii)
(A) Complaint of contractor noncompliance with this part;
(B) Available statements by the employee or the contractor regarding the alleged violation;
(C) Evidence that a seniority list was issued by the predecessor and provided to the successor;
(D) A copy of the seniority list;
(E) Evidence that the nondisplacement contract clause was included in the contract or that the contract was excepted by the contracting agency;
(F) Information concerning known settlement negotiations between the parties, if applicable;
(G) Any other relevant facts known to the contracting officer or other information requested by the Wage and Hour Division.
(2) [Reserved]
(f)
(a)
(2)
(3)
(4)
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(1)
(ii) The successor contractor must presume that all employees hired to work under a predecessor's Federal service contract will be terminated as a result of the award of the successor contract, unless it can demonstrate a reasonable belief to the contrary based upon reliable information provided by a knowledgeable source, such as the predecessor contractor, the employee, or the contracting agency.
(2)
(ii) The successor contractor must presume that all employees hired to work under a predecessor's federal service contract are service employees, unless it can demonstrate a reasonable belief to the contrary based upon reliable information provided by a
(3)
(ii) A successor contractor must presume that there would be no just cause to discharge any employees working under the predecessor contract in the last month of performance, unless it can demonstrate a reasonable belief to the contrary that is based upon reliable evidence provided by a knowledgeable source, such as the predecessor contractor and its subcontractors, the local supervisor, the employee, or the contracting agency.
(A) For example, a successor contractor may demonstrate its reasonable belief that there would be just cause to discharge an employee through reliable written evidence that the predecessor contractor initiated a process to terminate the employee for conduct warranting termination prior to the expiration of the contract, but the termination process was not completed before the contract expired. Conversely, written evidence of disciplinary action taken for poor performance without a recommendation of termination would generally not constitute reliable evidence of just cause to discharge the employee. This determination must be made on an individual basis for each employee. Information regarding the general performance of the predecessor contractor is not sufficient to claim this exception.
(B) [Reserved].
(4)
(ii) The successor contractor must presume that no employees who worked under a predecessor's federal service contract also worked on one or more nonfederal service contracts as part of a single job, unless the successor can demonstrate a reasonable belief based on reliable evidence to the contrary. The successor contractor must demonstrate that its belief is reasonable and is based upon reliable evidence provided by a knowledgeable source, such as the predecessor contractor, the local supervisor, the employee, or the contracting agency. Information regarding the general business practices of the predecessor contractor or the industry is not sufficient.
(iii) A successor contractor that makes a reasonable determination that a predecessor contractor's employee also performed work on one or more nonfederal service contracts as part of a single job must also make a reasonable determination that the employee was not deployed in such a way that was designed to avoid the purposes of this part. The successor contractor must demonstrate that its belief is reasonable and is based upon reliable evidence that has been provided by a knowledgeable source, such as the employee or the contracting agency.
(d)
(ii) Where, in accordance with this authority to employ fewer employees, a successor contractor does not offer employment to all the predecessor contract employees, the obligation to offer employment will continue for 90 calendar days after the successor contractor's first date of performance on the contract. The contractor's obligation under this part will end when all of the predecessor contract employees have received a bona fide job offer, as described in § 9.12(b), or when the 90-day window of obligation has expired. The following three examples demonstrate the principle.
(A) A contractor with 18 employment openings and a list of 20 employees from the predecessor contract must continue to offer employment to individuals on the list until 18 of the employees accept the contractor's employment offer or until the remaining employees have rejected the offer. If an employee quits or is terminated from the successor contract within 90 calendar days of the first date of contract performance, the contractor must first offer that employment opening to any remaining eligible employees of the predecessor contract.
(B) A successor contractor originally offers 20 jobs to predecessor contract employees on a contract that had 30 positions under the predecessor contractor. The first 20 predecessor contract employees the successor contractor approaches accept the employment offer. Within a month of commencing work on the contract, the successor determines that it must hire seven additional employees to perform the contract requirements. The first three predecessor contract employees to whom the successor offers employment decline the offer; however, the next four predecessor contract employees accept the offers. In accordance with the provisions of this section, the successor contractor offers employment on the contract to the three remaining predecessor contract employees who all accept; however, two employees on the contract quit 5 weeks later. The successor contractor has no further obligation under this part to make a second employment offer to the persons who previously declined an offer of employment on the contract.
(C) A successor contractor reduces staff on a successor contract by two positions from the predecessor contract's staffing pattern. Each predecessor contract employee the successor approaches accepts the employment offer; therefore, employment offers are not made to two predecessor contract employees. The successor contractor terminates an employee five months later. The successor contractor has no obligation to offer employment to the two remaining employees from the predecessor contract because more than 90 calendar days have passed since the successor contractor's first date of performance on the contract.
(2)
(3)
(e)
(2)
(3)
(f)
(2)
(ii) The contractor must maintain a copy of any record that forms the basis for any exclusion or exception claimed under this part.
(iii) The contractor must maintain a copy of the employee list received from the contracting agency and the employee list provided to the contracting agency. See paragraph (e) of this section, contractor obligations near end of contract performance.
(iv) Every contractor that makes retroactive payment of wages or compensation under the supervision of the Administrator of the Wage and Hour Division pursuant to § 9.23(b), must:
(A) Record and preserve, as an entry on the pay records, the amount of such payment to each employee, the period covered by such payment, and the date of payment.
(B) Prepare a report of each such payment on a receipt form provided by or authorized by the Wage and Hour Division, and
(v) The contractor must maintain evidence of any notices that they have provided to workers, or workers' collective bargaining representatives, to satisfy the requirements of the order or these regulations, including notices of the possibility of employment on the successor contract as required under § 9.12(e)(3); notices of agency exceptions that a contracting agency requires a contractor to provide under § 9.5(g) and section 6(b) of the order; and notices that a contracting agency has declined to include location continuity requirements or preferences in a solicitation pursuant to § 9.11(c)(3).
(3)
(4)
(g)
(a)
(b)
(a)
(b)
(a)
(b)
(a)
(b)
(c)
(2)
(3)
(d)
(e)
(a)
(b)
(2)
(a)
(b)
(ii)
(iii)
(2)
(ii)
(B)
(C)
The parties are encouraged to resolve disputes by using settlement judges to mediate settlement negotiations pursuant to the procedures and requirements of 29 CFR 18.13 or any successor to the regulation. Any settlement agreement reached must be approved by the assigned Administrative Law Judge consistent with the procedures and requirements of 29 CFR 18.71.
(a)
(2)
(ii) The Equal Access to Justice Act, as amended, does not apply to hearings under this part. Accordingly, an Administrative Law Judge will have no authority to award attorney fees and/or other litigation expenses pursuant to the provisions of the Equal Access to Justice Act for any proceeding under this part.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(a)
(2)
(ii) The Equal Access to Justice Act, as amended, does not apply to proceedings under this part. Accordingly, for any proceeding under this part, the Administrative Review Board will have no authority to award attorney fees and/or other litigation expenses pursuant to the provisions of the Equal Access to Justice Act.
(b)
(c)
(d)
(e)
If any provision of this part is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, or stayed pending further agency action, the provision shall be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event the provision shall be severable from this part and shall not affect the remainder thereof.
The following clause shall be included by the contracting agency in every contract, contract-like instrument, and solicitation to which Executive Order 14055 applies, except for procurement contracts subject to the Federal Acquisition Regulation (FAR):
(a) The contractor and its subcontractors shall, except as otherwise provided herein, in good faith offer service employees (as defined in the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3)) employed under the predecessor contract and its subcontracts whose employment would be terminated as a result of the award of this contract or the expiration of the contract under which the employees were hired, a right of first refusal of employment under this contract in positions for which those employees are qualified. The contractor and its subcontractors shall determine the number of employees necessary for efficient performance of this contract and may elect to employ more or fewer employees than the predecessor contractor employed in connection with performance of the work solely on the basis of that determination. Except as provided in paragraph (b), there shall be no employment opening under this contract or subcontract, and the contractor and any subcontractors shall not offer employment under this contract to any person prior to having complied fully with the obligations described in this clause. The contractor and its subcontractors shall make an express offer of employment to each employee as provided herein and shall state the time within which the employee must accept such offer, but in no case shall the period within which the employee must accept the offer of employment be less than 10 business days.
(b) Notwithstanding the obligation under paragraph (a) above, the contractor and any subcontractors:
(1) Are not required to offer a right of first refusal to any employee(s) of the predecessor contractor who are not service employees within the meaning of the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3); and
(2) Are not required to offer a right of first refusal to any employee(s) of the predecessor contractor for whom the contractor or any of its subcontractors reasonably believes, based on reliable evidence of the particular employees' past performance, that there would be just cause to discharge the employee(s) if employed by the contractor or any subcontractors.
(c) The contractor shall, not less than 10 business days before the earlier of the completion of this contract or of its work on this contract, furnish the contracting officer a certified list of the names of all service employees working under this contract and its subcontracts during the last month of contract performance. The list shall also contain anniversary dates of employment of each service employee under this contract and its predecessor contracts either with the current or predecessor contractors or their subcontractors. The contracting officer shall provide the list to the successor contractor, and the list shall be provided on request to employees or their representatives, consistent with the Privacy Act, 5 U.S.C. 552(a), and other applicable law.
(d) If it is determined, pursuant to regulations issued by the Secretary of Labor (Secretary), that the contractor or its subcontractors are not in compliance with the requirements of this clause or any regulation or order of the Secretary, the Secretary may impose appropriate sanctions against the contractor or its subcontractors, as provided in Executive Order 14055, the regulations implementing that order, and relevant orders of the Secretary, or as otherwise provided by law.
(e) In every subcontract entered into in order to perform services under this contract, the contractor shall include provisions that ensure that each subcontractor shall honor the requirements of paragraphs (a) and (b) with respect to the employees of a predecessor subcontractor or subcontractors working under this contract, as well as of a predecessor contractor and its subcontractors. The subcontract shall also include provisions to ensure that the subcontractor shall provide the contractor with the information about the employees of the subcontractor needed by the contractor to comply with paragraph (c) of this clause. The contractor shall take such action with respect to any such subcontract as may be directed by the Secretary as a means of enforcing such provisions, including the imposition of sanctions for noncompliance: provided, however, that if the contractor, as a result of such direction, becomes involved in litigation with a subcontractor, or is threatened with such involvement, the contractor may request that the United States enter into such litigation to protect the interests of the United States.
(f)(1) The contractor shall, not less than 30 calendar days before completion of the contractor's performance of services on a contract, furnish the contracting officer with a certified list of the names of all service employees working under the contract and its subcontracts at the time the list is submitted. The list shall also contain anniversary dates of employment of each service employee under the contract and its predecessor contracts with either the current or predecessor contractors or their subcontractors. Where changes to the workforce are made after the submission of the certified list described in this paragraph (f)(1), the contractor shall, in accordance with paragraph (c), not less than 10 business days before completion of the contractor's performance of services on a contract, furnish the contracting officer with an updated certified list of the names of all service employees employed within the last month of contract performance. The updated list shall also contain anniversary dates of employment and, where applicable, dates of separation of each service employee under the contract and its predecessor contracts with either the current or predecessor contractors or their subcontractors. Only contractors experiencing a change in their workforce between the 30- and 10-day periods shall have to submit a list in accordance with paragraph (c).
(2) The contracting officer shall upon their own action or upon written request of the Administrator withhold or cause to be withheld as much of the accrued payments due on either the contract or any other contract between the contractor and the Government that the Department of Labor representative requests or that the contracting officer decides may be necessary to pay unpaid wages or to provide other appropriate relief due under 29 CFR part 9. Upon the final order of the Secretary that such moneys are due, the Administrator may direct the relevant contracting agency to transfer the withheld funds to the Department of Labor for disbursement. If the contracting officer or the Administrator finds that the predecessor contractor has failed to provide a list of the names of service employees working under the contract and its subcontracts during the
(3) The contractor agrees to provide notifications to employees under the contract, and their representatives, if any, in the timeframes requested by the contracting agency, to notify employees of any agency determination to except a successor contract from the nondisplacement requirements of 29 CFR part 9, or to decline to include location continuity requirements or preferences in a successor contract. The notice must include a statement explaining that any request by interested parties for reconsideration of an agency's determination regarding the matter must be directed to the head of the agency or the head of the agency's contracting department.
(g) The contractor and subcontractors shall maintain records of their compliance with this clause for not less than a period of 3 years from the date the records were created. These records may be maintained in any format, paper or electronic, provided the records meet the requirements and purposes of 29 CFR part 9 and are fully accessible. The records maintained must include the following:
(1) Copies of any written offers of employment or a contemporaneous written record of any oral offers of employment, including the date, location, and attendance roster of any employee meeting(s) at which the offers were extended, a summary of each meeting, a copy of any written notice that may have been distributed to covered employees, and the names of the employees from the predecessor contract to whom an offer was made.
(2) A copy of any record that forms the basis for any exclusion or exception claimed under this part.
(3) A copy of the employee list(s) provided to or received from the contracting agency.
(4) An entry on the pay records of the amount of any retroactive payment of wages or compensation under the supervision of the Administrator of the Wage and Hour Division to each employee, the period covered by such payment, and the date of payment, and a copy of any receipt form provided by or authorized by the Wage and Hour Division. The contractor shall also deliver a copy of the receipt to the employee and file the original, as evidence of payment by the contractor and receipt by the employee, with the Administrator within 10 days after payment is made.
(h) The contractor shall cooperate in any review or investigation by the contracting agency or the Department of Labor into possible violations of the provisions of this clause and shall make records requested by such official(s) available for inspection, copying, or transcription upon request.
(i) Disputes concerning the requirements of this clause shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR part 9. Disputes within the meaning of this clause include disputes between or among any of the following: the contractor, the contracting agency, the U.S. Department of Labor, and the employees under the contract or its predecessor contract.
Employees who will not be laid off or discharged as a result of the end of this contract are not entitled to an offer of employment.
Managerial, supervisory, or non-service employees on the current contract are not entitled to an offer of employment.
The new contractor is permitted to reduce the size of the current workforce; in such circumstances, only a portion of the existing workforce may receive employment offers. However, the new contractor must offer employment to the displaced employees in positions for which they are qualified if any openings occur during the first 90 calendar days of performance on the new contract.
An employee hired to work under the current federal service contract and one or more nonfederal service contracts as part of a single job is not entitled to an offer of employment on the new contract, provided that the existing contractor did not deploy the employee in a manner that was designed to avoid the purposes of this part.
For additional information: 1-866-4US-WAGE (1-866-487-9243) TTY: 1-877-889-5627,
Fish and Wildlife Service, Interior.
Final rule.
The U.S. Fish and Wildlife Service (Service or we) is establishing the 2022-23 final frameworks from which States may select season dates, limits, and other options for the 2022-23 migratory game bird hunting season for certain migratory game birds. We annually prescribe outside limits (which we call “frameworks”) within which States may select hunting seasons. Frameworks specify the outside dates, season lengths, shooting hours, bag and possession limits, and areas where migratory game bird hunting may occur. These frameworks are necessary to allow State selections of seasons and limits and to allow harvest at levels compatible with migratory game bird population status and habitat conditions. Migratory game bird hunting seasons provide opportunities for recreation and sustenance, and aid Federal, State, and Tribal governments in the management of migratory game birds.
This rule takes effect on July 15, 2022.
States should send their season selections to: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, MS: MB, 5275 Leesburg Pike, Falls Church, VA 22041-3803. You may inspect comments received on the migratory bird hunting regulations at
Jerome Ford, U.S. Fish and Wildlife Service, Department of the Interior, (202) 208-1050. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
As part of the Department of the Interior's retrospective regulatory review, in 2015, we developed a schedule for migratory game bird hunting regulations that is more efficient and establishes hunting season dates earlier than was possible under the previous process. Under the current process, we develop proposed hunting season frameworks for a given year in the fall of the prior year. We then finalize those frameworks a few months later, thereby enabling the State agencies to select and publish their season dates in early summer. We provided a detailed overview of the current process in the August 3, 2017,
The process for promulgating annual regulations for the hunting of migratory game birds involves the publication of a series of proposed and final rulemaking documents. On August 31, 2021, we published in the
Further, in the August 31, 2021, proposed rule we explained that all sections of subsequent documents outlining hunting frameworks and guidelines would be organized under numbered headings, which were set forth at 86 FR 48651. This and subsequent documents will refer only to numbered items requiring attention. Because we will omit those items not requiring attention, the remaining numbered items may be discontinuous, and the list will appear incomplete.
We provided the meeting dates and locations for the Service Regulations Committee (SRC)
On February 2, 2022, we published in the
Each year, we publish reports that provide detailed information on the status and harvest of certain migratory game bird species. These reports are available at the address indicated under
We used the following annual reports published in August 2021 in the development of proposed frameworks for the migratory bird hunting regulations: Adaptive Harvest Management, 2022 Hunting Season; American Woodcock Population Status, 2021; Band-tailed Pigeon Population Status, 2021; Migratory Bird Hunting Activity and Harvest During the 2019-20 and 2020-21 Hunting Seasons; Mourning Dove Population Status, 2021; Status and Harvests of Sandhill Cranes, Mid-continent, Rocky Mountain, Lower Colorado River Valley and Eastern Populations, 2021; and Waterfowl Population Status, 2021.
Our long-term objectives continue to include providing opportunities to harvest portions of certain migratory game bird populations and to limit harvests to levels compatible with each population's ability to maintain healthy, viable numbers. Migratory game bird hunting seasons provide opportunities for recreation and sustenance, and aid Federal, State, and Tribal governments in the management of migratory game birds. Having taken into account the zones of temperature and the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory birds, we conclude that the hunting seasons provided for herein are compatible with the current status of migratory bird populations and long-term population goals. Additionally, we are obligated to, and do, give serious consideration to all information received during the public comment period.
The preliminary proposed rulemaking, which appeared in the August 31, 2021,
We received recommendations from all four Flyway Councils at the April and September SRC meetings; all recommendations are from the September meeting unless otherwise noted. Some recommendations supported continuation of last year's frameworks. Due to the comprehensive nature of the annual review of the frameworks performed by the Councils, support for continuation of last year's frameworks is assumed for items for which no recommendations were received. Council recommendations for changes in the frameworks are summarized below. As explained earlier in this document, we have included only the numbered items pertaining to issues for which we received recommendations. Consequently, the issues do not follow in successive numerical order.
For the 2022-23 hunting season, we will continue to use independent optimizations to determine the appropriate regulatory alternative for mallard stocks in the Mississippi, Central, and Pacific Flyways and for eastern waterfowl in the Atlantic Flyway. This means that we will develop regulations for mid-continent mallards, western mallards, and eastern waterfowl independently based on the breeding stock(s) that contributes primarily to each Flyway. We detailed implementation of AHM protocols for mid-continent and western mallards in the July 24, 2008,
We also stated in the August 31, 2021, proposed rule that the coronavirus pandemic and associated travel restrictions and human health concerns in the United States and Canada prevented the Service and their partners from performing the Waterfowl Breeding Population and Habitat Survey (WBPHS) and estimating waterfowl breeding abundances and habitat conditions in the spring of 2021 in some cases. As a result, AHM protocols have been adjusted only as necessary to inform decisions on duck hunting regulations based on model predictions of breeding abundances and habitat conditions. In most cases, system models specific to each AHM decision framework have been used to predict breeding abundances from the available information (
For the Atlantic Flyway, we set duck-hunting regulations based on the status and demographics of a suite of four duck species (eastern waterfowl) in eastern Canada and the Atlantic Flyway States: green-winged teal, common goldeneye, ring-necked duck, and wood duck. For purposes of the assessment, eastern waterfowl stocks are those breeding in eastern Canada and Maine (Federal WBPHS fixed-wing surveys in strata 51-53, 56, and 62-70, and helicopter plot surveys in strata 51-52, 63-64, 66-68, and 70-72) and in Atlantic Flyway States from New Hampshire south to Virginia (Atlantic Flyway Breeding Waterfowl Survey, AFBWS). Abundance estimates for green-winged teal, ring-necked ducks, and goldeneyes are derived annually by integrating fixed-wing and helicopter survey data from eastern Canada and Maine (WBPHS strata 51-53, 56, and 62-72). Counts of green-winged teal, ring-necked ducks, and goldeneyes in the AFBWS are negligible and therefore excluded from population estimates for those species. Abundance estimates for wood ducks in the Atlantic Flyway (Maine south to Florida) are estimated by integrating data from the AFBWS and the North American Breeding Bird Survey. Counts of wood ducks from the WBPHS are negligible and therefore excluded from population estimates.
For the 2022-23 hunting season, we evaluated alternative harvest regulations for eastern waterfowl using: (1) A management objective of 98 percent of maximum long-term sustainable harvest for eastern waterfowl; (2) the 2022-23 regulatory alternatives; and (3) current stock-specific population models and associated weights. Based on the liberal regulatory alternative selected for the 2021-22 duck hunting season, the 2021 abundances of 1.02 million observed wood ducks, and of 0.34 million American green-winged teal, 0.71 million ring-necked ducks, and 0.59 million goldeneyes predicted for the eastern survey area and Atlantic Flyway, the optimal regulation for the Atlantic Flyway is the liberal alternative. Therefore, we concur with the recommendation of the Atlantic Flyway Council regarding selection of the liberal regulatory alternative as described in the August 31, 2021, proposed rule for the 2022-23 season.
The mallard bag limit in the Atlantic Flyway is based on a separate assessment of the harvest potential of eastern mallards (see xi. Other, below, for further discussion on the mallard bag limit in the Atlantic Flyway).
For the Mississippi and Central Flyways, we set duck-hunting regulations based on the status and demographics of mid-continent mallards and habitat conditions (pond numbers in Prairie Canada). For purposes of the assessment, mid-continent mallards are those breeding in central North America (Federal WBPHS strata 13-18, 20-50, and 75-77), and in Michigan, Minnesota, and Wisconsin (State surveys).
For the 2022-23 hunting season, we evaluated alternative harvest regulations for mid-continent mallards using: (1) A management objective of maximum long-term sustainable harvest; (2) the 2022-23 regulatory alternatives; and (3) current population models and associated weights. Based on a liberal regulatory alternative selected for the 2021-22 hunting season, the 2021 model predictions of 8.62 million mid-continent mallards and 2.94 million ponds in Prairie Canada, the optimal regulation for the Mississippi and Central Flyways is the liberal alternative. Therefore, we concur with the recommendations of the Mississippi and Central Flyway Councils regarding selection of the liberal regulatory alternative as described in the August 31, 2021, proposed rule for the 2022-23 season.
For the Pacific Flyway, we set duck-hunting regulations based on the status and demographics of western mallards. For purposes of the assessment, western mallards consist of two substocks and are those breeding in Alaska and Yukon Territory (Federal WBPHS strata 1-12) and those breeding in the southern Pacific Flyway including California, Oregon, Washington, and British Columbia (State and Provincial surveys) combined.
For the 2022-23 hunting season, we evaluated alternative harvest regulations for western mallards using: (1) A management objective of maximum long-term sustainable harvest; (2) the 2022-23 regulatory alternatives; and (3) the current population model. Based on a liberal regulatory alternative selected for the 2021-22 hunting season, and 2021 abundances of 1.17 million western mallards observed in Alaska (0.64 million) and predicted for the southern Pacific Flyway (0.53 million), the optimal regulation for the Pacific Flyway is the liberal alternative. Therefore, we concur with the recommendation of the Pacific Flyway Council regarding selection of the liberal regulatory alternative as described in the August 31, 2021, proposed rule for the 2022-23 season.
Because a spring 2021 abundance estimate from the WBPHS for blue-winged teal was not available, we used time series models to predict their abundance. The predicted estimate was 5.83 million birds. Because this estimate is greater than 4.7 million birds, the special early teal season guidelines (see 79 FR 51403, August 28, 2014) indicate that a 16-day special early (September) teal season with a 6-teal daily bag limit is appropriate for States in the Atlantic, Mississippi, and Central flyways.
In Florida, Kentucky, and Tennessee, in lieu of a special early teal season, a 5-consecutive-day teal-wood duck season may be selected in September. The daily bag limit may not exceed 6 teal and wood ducks in the aggregate, of which no more than 2 may be wood ducks. In addition, a 4-consecutive-day
For the 2022-23 hunting season, we evaluated country-specific alternative harvest regulations using: (1) A management objective of 98 percent of maximum long-term sustainable harvest; (2) country-specific regulatory alternatives; and (3) current population models and associated weights. Based on the moderate regulatory alternative selected for the 2021-22 hunting season and the 2021 model predictions of 0.54 million breeding black ducks and 0.39 million breeding mallards (Federal WBPHS strata 51, 52, 63, 64, 66, 67, 68, 70, 71, and 72; core survey area), the optimal regulation for the Atlantic and Mississippi Flyways is the moderate alternative (and the liberal alternative in Canada). Therefore, we concur with the recommendations of the Atlantic and Mississippi Flyway Councils.
For the 2022-23 hunting season, we evaluated alternative harvest regulations for pintails using: (1) A management objective of maximum long-term sustainable harvest, including a closed-season constraint of 1.75 million birds; (2) the regulatory alternatives; and (3) current population models and associated weights. Based on a liberal regulatory alternative with a 1-bird daily bag limit for the 2021-22 season, and the 2021 model predictions of 2.50 million pintails with the center of the population predicted to occur at a mean latitude of 55.47 degrees (Federal WBPHS traditional survey area, strata 1-18, 20-50, and 75-77), the optimal regulation for all four Flyways is the liberal alternative with a 1-pintail daily bag limit. Therefore, we concur with the recommendations of the four Flyway Councils.
For the 2022-23 hunting season, we evaluated alternative harvest regulations for scaup using: (1) A management objective of 95 percent of maximum sustainable harvest; (2) the regulatory alternatives; and (3) the current population model. Based on a moderate regulatory alternative for the 2021-22 season, and the 2021 model prediction of 3.53 million scaup (Federal WBPHS traditional survey area, strata 1-18, 20-50, and 75-77), the optimal regulation for all four Flyways is the restrictive alternative. Therefore, we concur with the recommendations of the four Flyway Councils regarding selection of the restrictive alternative for the 2022-23 season.
Using contemporary data and assuming a management objective of maximum long-term sustainable harvest, the PTL analysis estimated an allowable kill rate of 0.194-0.198. The expected kill rate for eastern mallards under a 60-day season and a 2-mallard daily bag limit in the U.S. portion of the Atlantic Flyway was 0.193 (SE = 0.016), which is slightly below (but not significantly different from) the point estimate of allowable kill at maximum long-term sustainable harvest. This estimate indicates that a 2-bird daily bag limit is sustainable at this time.
The changes to the 2016 Atlantic Flyway sea duck regulations did not achieve the target reduction in total sea duck harvest. Therefore, we are supportive of the changes recommended by the Atlantic Flyway Council due to the continued concern regarding the status and trends of sea duck populations in the Atlantic Flyway, and our desire to reduce sea duck harvest in the Atlantic Flyway below the average annual harvest observed during 2011-2015. Regarding existing regulation that allows shooting of crippled waterfowl from a boat under power in the currently defined special sea duck area, the purpose of this regulation is to protect human safety and minimize duck crippling loss associated with hunting ducks at sea in the Atlantic Flyway.
Also, we agree with the Central Flyway Council's recommendation to eliminate the separate merganser daily bag limit of 5 birds and include mergansers in the general duck season bag limit of 6 birds in the aggregate with no merganser species-specific bag limit restrictions. This is more liberal in that it removes the species-specific restriction of two hooded mergansers in the daily bag limit, but is more restrictive in that mergansers would be part of an aggregate 6-bird daily bag limit with ducks rather than allowing a 5-bird merganser daily bag limit in addition to a 6-bird duck daily bag limit. We expect this to have negligible impact to hooded and other merganser population status. It will reduce potential overall duck and merganser harvest, and States already have the option of including mergansers in the duck bag limit of 6 birds in the aggregate. Also, this change will result in more simple duck (including merganser) hunting regulations and be more consistent across States split between the Central and Pacific Flyways.
1. Adopting the restrictive regulatory option as described in the Atlantic Flyway Council's Atlantic Population (AP) Canada Geese Harvest Strategy (30-day season between December 25 through January 25 with a daily bag limit of 1 goose) for all AP Canada geese zones in the U.S. portion of the Atlantic Flyway, including North Carolina;
2. The addition of a special late season in Vermont, the Lake Champlain Zone of New York, and the AP Canada geese zones in Connecticut and Massachusetts. The season may be December 1-February 15 in Vermont and the Lake Champlain Zone of New York, and December 15-February 15 in the AP Canada geese zones of Connecticut and Massachusetts. The daily bag limit is 5 geese; and
3. Eliminating the Southern James Bay Population (SJBP) of Canada geese zone in Pennsylvania with this area becoming part of Pennsylvania's Atlantic Flyway Resident Population (RP) of Canada geese zone.
The Pacific Flyway Council recommended several changes to the Canada and cackling goose and brant season framework in the Pacific Flyway. Specifically:
1. Increasing the daily bag limit for Canada and cackling geese and brant in Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming from 4 to 5 geese in the aggregate;
2. Changing the closing date for Canada and cackling geese and brant in Utah's Wasatch Front Zone from the first Sunday in February to February 15;
3. Approving a 3-segment season option for Canada and cackling geese in California's Balance of State Zone; and
4. Decreasing the daily bag limit for Canada and cackling geese in Washington's Southwest Permit Zone and Oregon's Northwest Permit Zone from 4 to 3 geese in the aggregate.
New England (CT, MA, VT) and Lake Champlain Zone of New York: October 10-February 5;
Mid-Atlantic (NJ, NY, PA): fourth Saturday in October-February 5;
Chesapeake (DE, MD, VA): November 15-February 5; and
North Carolina (Northeast Unit): the Saturday prior to December 25-January 31.
In 2021, the Atlantic Flyway Council, in collaboration with the Service, updated their 2013 harvest strategy for AP Canada geese. The revision incorporated several additional years of experience on effects of contemporary harvest regulations on AP Canada geese abundance and recent advances in population modeling and other analytical tools. The harvest strategy supports the Council's 2008 management plan for AP Canada geese and is consistent with the overarching goal of the plan: To maintain AP Canada geese and their habitats at a level that provides optimum opportunities for people to use and enjoy geese on a sustainable basis.
Regarding the additional special late seasons in three areas, these areas account for a small proportion of the AP Canada goose harvest. Since 1999, the New England region (including AP, NAP, and RP Canada goose zones) has accounted for only 1.3 percent of all AP Canada goose band recoveries. The special late season occurs after most AP Canada geese have migrated from the region (early to mid-December). The objective of the special late season is to increase harvest of RP Canada geese while minimizing impacts to AP Canada geese. An existing late special season with a similar objective has been allowed in parts of New Jersey since 1994. The additional special late seasons will provide increased opportunity for hunters and an additional tool for State agencies to manage resident populations of geese.
Regarding the Council's recommendation to eliminate the SJBP Canada geese zone in Pennsylvania, the SJBP of Canada geese is no longer recognized as a separate population by the Service or the Atlantic and Mississippi Flyway Councils. The SJBP of Canada geese is now considered part of the larger Southern Hudson Bay Population (SHBP) of Canada geese, which is monitored and managed according to the Mississippi Flyway Council's management plan. Elimination of the SJBP Canada geese zone in Pennsylvania and incorporation of this area into the RP Canada geese zone will expose Canada geese in the area to slightly more liberal regulations but will not appreciably increase harvest of AP Canada geese. This change will simplify regulations, provide increased hunting opportunity, and provide increased opportunity to manage resident population of geese.
We agree with the Pacific Flyway Council's recommendation to increase the daily bag limit for Canada and cackling geese and brant in Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming from 4 to 5 geese in the aggregate. Cackling geese and brant are uncommon in interior States in the Pacific Flyway. The basic goose season framework for the Pacific Flyway includes these species in an aggregate bag limit for interior States because of the difficulty in hunter differentiation of these species and because harvest of cackling geese and brant is negligible to their population status. The western Canada goose is the primary subspecies of Canada goose occurring in interior States in the Pacific Flyway. There are two populations of western Canada goose in the Pacific Flyway: Rocky Mountain Population (RMP) and Pacific Population (PP). The most recent 3-year (2017-2019) average population estimate for RMP western Canada geese is 205,338 and is well above the Council's population objective of 117,000 geese. Similarly,
We also agree with the Council's recommendation to change the closing date for Canada and cackling geese and brant in Utah's Wasatch Front Zone from the first Sunday in February to February 15. The western Canada goose is the primary subspecies of Canada goose in Utah. Abundance of RMP Canada geese is well above the Council's population objective (see above). The Utah Division of Wildlife Resources has been collecting data on Canada geese in urban areas along the Wasatch Front (
We also agree with the Council's recommendation to allow a 3-segment split hunting season for Canada and cackling geese in California's Balance of State Zone. Current frameworks allow a 3-segment split for Canada and cackling geese, but this arrangement requires Pacific Flyway Council and Service approval and a 3-year evaluation by each participating State. The primary subspecies of white-cheeked geese in California are the western Canada goose and Aleutian cackling goose. The current 3-year (2019-2021) average population estimate for Aleutian cackling geese is 168,009 and is well above the Council's population objective of 60,000 geese. Similarly, abundance of PP Canada geese is well above the Council's population objective (see above). Allowing the Canada and cackling geese season to be split into 3 segments will provide additional flexibility to the State to address increasing depredation and nuisance complaints associated with Canada and cackling geese and provide hunting opportunity. In addition, a 3-segment season will be consistent with the current light goose and white-fronted goose seasons in California's Balance of State Zone, which will help simplify regulations.
Finally, we also agree with the Council's recommendation that the daily bag limit for Canada and cackling geese in Washington's Southwest Permit Zone and Oregon's Northwest Permit Zone be reduced from 4 to 3 geese in the aggregate. The most recent 3-year (2018, 2019, 2021) average of available fall projected population estimates for minima cackling geese is 206,763 and is below the Council's population objective of 250,000 ± 10 percent (225,000-275,000). Band recovery data from hunter harvest of minima cackling geese indicate that most (77 percent) of the fall-winter harvest occurs in northwest Oregon and southwest Washington, and the next highest harvest area (6 percent) is western Alaska (Units 9, 17, and 18). Accordingly, the Pacific Flyway Council also recommended that the daily bag limit for Canada and cackling geese in parts of Alaska be reduced from 6 to 4 geese in the aggregate. The decrease in the daily bag limits is specifically intended to maintain objective abundance of minima cackling geese and is consistent with the Council's harvest strategy for these birds.
Regarding the Atlantic Flyway Council's request for correction to frameworks dates for AP Canada geese, we have made the suggested corrections. The changes correspond to the season dates and structure identified in the Atlantic Flyway Council's AP Canada geese harvest strategy and have been supported by the SRC.
The recent 3-year average (2020-2022) WBS count of Pacific brant was 150,717. Based on the harvest strategy, the appropriate season length and daily bag limit framework for Pacific brant in the 2022-23 season is a 107-day season with a 4-bird daily bag limit in Alaska, and a 37-day season with a 2-bird daily bag limit in California, Oregon, and Washington.
We agree with the Central and Pacific Flyway Councils' recommendations to determine allowable harvest of RMP cranes using the formula in the Pacific and Central Flyway Councils' management plan for RMP cranes pending results of the fall 2021 abundance and recruitment surveys. As we discussed in the March 28, 2016,
The 2021 fall RMP crane abundance estimate was 23,963 cranes, resulting in a 3-year (2019-2021) average of 23,630 cranes, similar to the previous 3-year average, which was 22,909 cranes. The RMP crane recruitment estimate was 8.75 percent young in the fall population, resulting in a 3-year (2019-2021) average of 9.12 percent, which is higher than the previous 3-year average of 8.25 percent. Using the current harvest strategy and the above most recent 3-year average abundance and recruitment estimates, the allowable harvest for the 2022-23 season is 2,778 cranes.
The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the
Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has reviewed this rule and has determined that this rule is significant because it would have an annual effect of $100 million or more on the economy.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
An economic analysis was prepared for the 2022-23 migratory bird hunting season. This analysis was based on data from the 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (National Survey), the most recent year for which data are available (see discussion under Regulatory Flexibility Act, below). This analysis estimated consumer surplus for three alternatives for duck hunting regulations. As defined by the U.S. Office of Management and Budget in Circular A-4, consumers' surplus is the difference between what a consumer pays for a unit of a good or service and the maximum amount the consumer would be willing to pay for that unit. The duck hunting regulatory alternatives are (1) issue restrictive regulations allowing fewer days than those issued during the 2021-22 season, (2) issue moderate regulations allowing more days than those in Alternative 1, and (3) issue liberal regulations similar to the regulations in the 2021-22 season. For the 2021-22 season, we chose Alternative 3, with an estimated consumer surplus across all flyways of $270-$358 million with a mid-point estimate of $314 million. We also chose Alternative 3 for the 2009-10 through 2020-21 seasons. The 2022-23 analysis is part of the record for this rule and is available at
The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule will have an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, which are time sensitive, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 02/29/2024).
• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 04/30/2023). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.
• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 10/31/2024).
You may view the information collection request(s) at
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.
In accordance with E.O. 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule will allow hunters to exercise otherwise unavailable privileges and, therefore, will reduce restrictions on the use of private and public property.
E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. While this rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no statement of energy effects is required.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian Tribes and have determined that there are
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive in its regulations than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
Pursuant to the Migratory Bird Treaty Act and delegated authorities, the Department of the Interior is establishing the following frameworks for outside dates, season lengths, shooting hours, bag and possession limits, and areas within which States may select seasons for hunting migratory game birds between the dates of September 1, 2022, and March 10, 2023. These frameworks are summarized below.
These federally authorized, State-issued permits are issued to individuals, and only the individual whose name and address appears on the permit at the time of issuance is authorized to take migratory birds at levels specified in the permit, in accordance with provisions of both Federal and State regulations governing the hunting season. The permit must be carried by the permittee when exercising its provisions and must be presented to any law enforcement officer upon request. The permit is not transferrable or assignable to another individual, and may not be sold, bartered, traded, or otherwise provided to another person. If the permit is altered or defaced in any way, the permit becomes invalid.
We generally set migratory bird hunting frameworks for the conterminous U.S. States by Flyway or Management Unit/Region. Frameworks for Alaska, Hawaii, Puerto Rico, and the Virgin Islands are contained in separate sections near the end of the frameworks portion of this document. The States included in the Flyways and Management Units/Regions are described below.
For the purpose of the hunting regulations listed below, the collective terms “dark” and “light” geese include the following species:
In the Atlantic Flyway States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, North Carolina, and Pennsylvania, where Sunday hunting of migratory birds is prohibited statewide by State law or regulation, all Sundays are closed to the take of all migratory game birds.
A craft under power may be used to shoot and retrieve dead or crippled birds in the Sea Duck Area in the Atlantic Flyway. The Sea Duck Area includes all coastal waters and all waters of rivers and streams seaward from the first upstream bridge in Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, and New York; in New Jersey, all coastal waters seaward from the International Regulations for Preventing Collisions at Sea (COLREGS) Demarcation Lines shown on National Oceanic and Atmospheric Administration (NOAA) Nautical Charts and further described in 33 CFR 80.165, 80.501, 80.502, and 80.503; in any waters of the Atlantic Ocean and in any tidal waters of any bay that are separated by at least 1 mile of open water from any shore, island, and emergent vegetation in South Carolina and Georgia; and in any waters of the Atlantic Ocean and in any tidal waters of any bay that are separated by at least 800 yards of open water from any shore, island, and emergent vegetation in Delaware, Maryland, North Carolina, and Virginia; and provided that any such areas have been described, delineated, and designated as special sea duck hunting areas under the hunting regulations adopted by the respective States.
North Dakota may split their season into 3 segments. Montana, New Mexico, Oklahoma, and Texas may select seasons in each of 2 zones; and Colorado, Kansas, South Dakota, and Wyoming may select seasons in each of 3 zones; and all these States may split their season in each zone into 2 segments. Nebraska may select seasons in each of 4 zones.
In Oregon and Washington permit zones, the hunting season is closed on dusky Canada geese. A dusky Canada goose is any dark-breasted Canada goose (Munsell 10 YR color value 5 or less) with a bill length between 40 and 50 millimeters. Hunting of geese will only be by hunters possessing a State-issued permit authorizing them to do so. Shooting hours for geese may begin no earlier than sunrise. Regular Canada and cackling goose seasons in the permit zones of Oregon and Washington remain subject to the Memorandum of Understanding entered into with the Service regarding monitoring the impacts of take during the regular Canada and cackling goose season on the dusky Canada goose population.
States in the Pacific Flyway may select their hunting seasons between the outside dates for the season on ducks, mergansers, and coots; therefore, Pacific Flyway frameworks for gallinules are included with the duck, merganser, and coot frameworks.
In addition, Texas may select a hunting season of not more than 6 days, consisting of two 3-consecutive-day periods, for the Special White-winged Dove Area between September 1 and September 19. The daily bag limit may not exceed 15 white-winged, mourning, and white-tipped doves in the aggregate, of which no more than 2 may be mourning doves and no more than 2
Idaho, Nevada, Oregon, Utah, and Washington
In addition to the basic daily bag limits, the sea duck daily bag limit is 10, including 6 each of either harlequin or long-tailed ducks. Sea ducks include scoters, common and king eiders, harlequin ducks, long-tailed ducks, and common, hooded, and red-breasted mergansers.
In accordance with 50 CFR 21.82, falconry is a permitted means of taking migratory game birds in any State except for Hawaii. States may select an extended season for taking migratory game birds in accordance with the following:
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same zones as for ducks.
Same as for early Canada and cackling goose seasons.
Same zones as for ducks.
A. That portion of the State lying east and north of a line beginning at the junction of U.S. Highway 81 and the Texas-Oklahoma State line, then southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, then southeast along U.S. Highway 287 to its junction with I-35W in Fort Worth, then southwest along I-35 to its junction with U.S. Highway 290 East in Austin, then east along U.S. Highway 290 to its junction with Interstate Loop 610 in Harris County, then south and east along Interstate Loop 610 to its junction with Interstate Highway 45 in Houston, then south on Interstate Highway 45 to State Highway 342, then to the shore of the Gulf of Mexico, and then north and east along the shore of the Gulf of Mexico to the Texas-Louisiana State line.
B. That portion of the State lying within the boundaries of a line beginning at the Kleberg-Nueces County line and the shore of the Gulf of Mexico, then west along the County line to Park Road 22 in Nueces County, then north and west along Park Road 22 to its junction with State Highway 358 in Corpus Christi, then west and north along State Highway 358 to its junction with State Highway 286, then north along State Highway 286 to its junction with Interstate Highway 37, then east along Interstate Highway 37 to its junction with U.S. Highway 181, then north and west along U.S. Highway 181 to its junction with U.S. Highway 77 in Sinton, then north and east along U.S. Highway 77 to its junction with U.S. Highway 87 in Victoria, then south and east along U.S. Highway 87 to its junction with State Highway 35 at Port Lavaca, then north and east along State Highway 35 to the south end of the Lavaca Bay Causeway, then south and east along the shore of Lavaca Bay to its junction with the Port Lavaca Ship Channel, then south and east along the Lavaca Bay Ship Channel to the Gulf of Mexico, and then south and west along the shore of the Gulf of Mexico to the Kleberg-Nueces County line.