The U.S. Codex Office
International Trade Administration
National Oceanic and Atmospheric Administration
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Bureau of Safety and Environmental Enforcement
Fish and Wildlife Service
National Park Service
Executive Office for Immigration Review
Employment and Training Administration
National Endowment for the Humanities
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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.
Executive Office for Immigration Review, Department of Justice.
Final rule.
On March 27, 2019, the Department of Justice (the Department) published in the
This rule is effective November 14, 2022.
Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-0289 (not a toll-free call).
The Immigration and Nationality Act (INA) provides that noncitizens appearing before an immigration judge “shall have the privilege of being represented, at no expense to the Government, by counsel of the [noncitizen]'s choosing who is authorized to practice in such proceedings.” INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A);
The Department has promulgated regulations that establish rules of procedure before the immigration courts and the Board of Immigration Appeals (BIA), including rules specifying who is authorized to provide representation and standards of professional conduct governing those authorized to provide representation.
Prior to a 2015 final rule, an entry of appearance in immigration court through the filing of a Form EOIR-28 required a practitioner to represent a noncitizen in all proceedings before the immigration court, including removal and bond proceedings if the noncitizen was detained.
For many years, members of the public have requested that the Department modify EOIR's regulations to allow practitioners to engage in limited appearances before EOIR on behalf of pro se noncitizens, without the practitioner being obligated to become the practitioner of record and represent the noncitizen for the entire proceeding, so that the practitioner could provide in-person representation for a discrete, limited part of a proceeding or draft forms or applications beyond what is already permitted by separate appearances as discussed above.
The Department agrees and acknowledges the importance of allowing practitioners to limit their appearance to document assistance to enhance the efficiency and fairness of immigration proceedings. After consideration, the Department has determined that permitting limited appearances to provide document assistance to pro se noncitizens would be beneficial because it would give practitioners greater flexibility to assist noncitizens appearing pro se before EOIR, provide increased access to competent legal services for noncitizens in immigration proceedings, and aid EOIR in adjudicating cases of pro se noncitizens who receive document assistance from practitioners. The new rule does not allow limited appearances for in-person representation, beyond what is already permitted under separate appearances as described above.
The final rule expands the circumstances in which practitioners may assist noncitizens in proceedings before an immigration court and the BIA by allowing practitioners to enter limited appearances—without further obligations or responsibilities to the immigration court, the BIA, or the noncitizen—when only providing assistance with documents filed in those proceedings. The rule clarifies when practitioners must file an appearance and the effect of the entry of a particular appearance. There is no change to the mechanism that causes a practitioner to become the “practitioner of record,” which authorizes and requires the practitioner to appear before EOIR on behalf of the respondent, file all documents on behalf of the respondent, and accept service of process of all documents filed in the proceedings. A practitioner becomes a practitioner of record only by entering an appearance using a Form EOIR-27 or Form EOIR-28. Under this rule, practitioners may also choose to enter a limited appearance on a Form EOIR-60 or EOIR-61 when only providing document assistance to pro se noncitizens. Such a limited appearance does not restrict practitioners from later filing a Form EOIR-27 or EOIR-28 to enter an appearance as the practitioner of record.
“Document assistance” is the drafting, completing, or filling in of blank spaces of a specific motion, brief, form, or other document or set of documents intended to be filed with the immigration court or BIA. If they are not otherwise the practitioner of record, practitioners who engage in document assistance must disclose such assistance by entering a limited appearance. To facilitate this process, EOIR has created two new entry of appearance forms: Form EOIR-60 (Notice of Entry of Limited Appearance for Document Assistance Before the Board of Immigration Appeals) and Form EOIR-61 (Notice of Entry of Limited Appearance for Document Assistance Before the Immigration Court). In addition, practitioners must identify themselves on the documents with which they assisted and complete the preparer section on forms with which they assisted.
Unlike an entry of appearance to become the practitioner of record through the filing of a Form EOIR-27 or EOIR-28, the entry of a limited appearance for document assistance pursuant to a Form EOIR-60 or EOIR-61 does not impose any continuing obligations to the noncitizen, the immigration court, or the BIA on the part of the practitioner.
As explained
As noted below and as was already the case, all practitioner conduct—not just conduct that requires a practitioner to enter an appearance as the attorney of record—may be subject to EOIR's disciplinary rules.
Given that only “practitioners” may enter an appearance before EOIR, the changes made in this final rule regarding the circumstances in which a practitioner must enter an appearance do not apply to non-practitioners. Non-practitioners continue to be permitted to assist noncitizens with the “preparation” of documents, which consists solely of filling in blank spaces on printed forms with information provided by the applicant or petitioner that are to be filed with or submitted to EOIR, only where such acts do not include the exercise of professional judgment to provide legal advice or legal services.
In summary, the final rule establishes or reaffirms that practitioners: (1) must enter an appearance on Form EOIR-27 or Form EOIR-28 to become the practitioner of record and thereby be authorized and required to appear for hearings or arguments on behalf of a noncitizen before the immigration courts or the BIA, to file documents on behalf of a noncitizen, and to accept service of process on behalf of a noncitizen of all documents filed in a proceeding; (2) must enter a limited appearance on Form EOIR-60 or Form EOIR-61 when they provide document assistance to a pro se noncitizen, regardless of whether the assistance involves “practice” (
The comment period for the NPRM closed on October 30, 2020. The Department received 41 comments. Non-governmental organizations, legal advocacy groups, non-profit organizations, and religious organizations submitted the majority of these comments, and individual commenters submitted the remainder. The Department provided an additional 60-day notice and comment period for the proposed Notices of Entry of Limited Appearance for Document Assistance, Forms EOIR-60 and EOIR-61.
Below, the Department has summarized the comments and explained the changes the Department has made in response. The comments are addressed by topic rather than by reference to a specific commenter to prevent confusion due to overlapping comments and multiple subjects raised in some of the submissions.
Some commenters asserted that the rule did not adequately explain the goals and reasons for the proposed changes, why the Department was departing from existing practice of prohibiting limited appearances, that the revised definitions of “practice” and “preparation” were arbitrary and capricious, as well as vague, and that the Department did not consider the effect of the rule on various service-provider programs. They stated that these concerns rise to a violation of the Administrative Procedure Act (APA) and the U.S. Constitution. The Department believes that the reasoning for the proposed changes was sufficiently set forth in both the ANPRM and NPRM, and that the NPRM adequately addressed these issues as well as the rule's expected impact on the public. Nevertheless, the Department provides further explanation and clarification to address these concerns herein.
The Department received many comments expressing confusion or demonstrating a lack of clarity in the proposed rule as to when the proposed rule would require filing an entry of appearance. The comments reflected confusion about the scope of the definitions of “practice,” “preparation,” and “representation”; the effect of filling out a form's “preparer section” on the obligation to enter an appearance; and the obligations, if any, of practitioners after the practitioner finishes providing document assistance.
Additionally, the Department received many comments that the proposed definitions of “practice,” “preparation,” and “representation” as defined in the NPRM could be interpreted by practitioners to create additional barriers to representation and have the overall effect of providing fewer noncitizens with legal assistance in immigration proceedings.
Considering these comments and the concerns raised, the Department has amended the regulatory provisions related to entry of appearances before the immigration courts and the BIA,
The final rule requires an entry of appearance in two circumstances: (1) when a practitioner wants to become the practitioner of record, which authorizes and requires the practitioner to appear before EOIR on behalf of the respondent, file all documents on behalf of the respondent, and accept service of process of all documents filed in the proceedings,
Under the current rules, it is unclear whether it is the practitioner or some other triggering event, such as engaging in “practice” or “preparation,” that determines when an entry of appearance is required. While the final rule makes no changes to the actions practitioners take to become the practitioner of record—namely, the requirement to enter an appearance on Form EOIR-27 or Form EOIR-28—it does remove any reference to “represented” in order to eliminate any perception that all acts constituting “practice,” “preparation,” or “representation” determine the entry of such appearance. The final rule revises 1003.17(a) and 1003.38(g) to make clear that practitioners become practitioners of record, regardless of whether they are engaging in “practice” or “preparation” or otherwise meeting the definition of “representation,” when they seek authorization to and wish to take on the responsibilities and obligations of that role, which includes appearing at hearings, filing documents on behalf of a noncitizen, and accepting service on behalf of a noncitizen. Practitioners are not authorized to engage in these activities or have these obligations unless they have entered an appearance on Form EOIR-27 or Form EOIR-28.
When a practitioner's services to a pro se noncitizen are limited to document assistance, and they are not practitioner of record before the immigration court or the BIA, practitioners are required to enter a limited appearance on Form EOIR-60 or Form EOIR-61.
As described above, the Department received many comments expressing concern that the proposed rule's definitions of “practice” and “preparation” could dissuade practitioners from entering appearances to assist pro se noncitizens. The Department acknowledges that the NPRM's definitions of “practice” and “preparation,” when read in conjunction with the NPRM's requirements for entry of an appearance, had the unintended consequence of causing confusion about the type of conduct that requires an entry of appearance, for both limited appearances for document assistance and to become the practitioner of record, whether for removal proceedings, custody proceedings, or both. Therefore, the final rule does not rely on these definitions for determining when an entry of appearance is required for either a limited appearance or to become the practitioner of record.
Commenters voiced concern with the NPRM's definition of “practice” and the interaction of that definition with the proposed rule's entry of appearance requirements. They expressed concern that the terms “exercise of legal judgment” and “legal advice” in the NPRM's definition of “practice” indicated that nearly any action a practitioner takes on behalf of a noncitizen would require an entry of appearance. Specifically, they indicated that this broad definition of “practice” could cause any form of education, orientation, or discussion with a pro se noncitizen to be considered “practice” and to trigger the obligation to file an entry of appearance. They also asserted that some conduct that was described as “practice” should not require entry of an appearance.
As described above, although some actions constituting “practice” may require the entry of an appearance, the final rule does not rely on the definition of “practice” in determining when an appearance must be filed. The final rule revises 1003.17(a) and 1003.38(g) to make clear that practitioners become the practitioners of record, pursuant to the filing of a Form EOIR-27 or Form EOIR-28, when they seek authorization to take on the responsibilities and obligations of that role, which includes appearing at hearings, filing documents on behalf of a noncitizen, and accepting service on behalf of a noncitizen. The final rule further clarifies that the entry of a limited appearance pursuant to the filing of a Form EOIR-60 or EOIR-61 is required only when a practitioner is engaged in document assistance—described in 1003.17(b) as “assistance to a pro se respondent with the drafting, completion, or filling in of blank spaces of a specific motion, brief, form, or other document or set of documents intended to be filed”—with the immigration court or BIA. Thus, a limited appearance must accompany any document assistance provided by a practitioner that is at least “preparation,” regardless of whether it may also constitute “practice.” 8 CFR 1003.17(b), 1003.38(g)(2).
The final rule does not adopt the language from the NPRM for the definition of “practice.”
The rule maintains a broad definition of “practice” for a specific reason: all practitioner conduct that constitutes “practice”—not just conduct that requires entry of an appearance—may be subject to EOIR's Rules of Professional Conduct and state rules regulating attorney conduct.
As discussed above, the terms “practice” and “preparation” do not determine when an appearance must be entered to become the practitioner of record; practitioners may engage in some conduct constituting “practice” or “preparation” without having to enter an appearance to become the practitioner of record. Moreover, even if engaging in “practice” or “preparation,” the practitioner may only be required to enter a limited appearance if such conduct constitutes document assistance as described in 1003.17(b) and 1003.38(g)(2). For example, if a practitioner is leading a legal orientation session to a group of pro se noncitizens, and in doing so, merely explains available forms of immigration relief to them, the practitioner is not required to enter an appearance of any kind. However, if a practitioner assists a pro
Commenters indicated that the proposed rule's definition of “preparation” could result in practitioners not providing assistance to pro se noncitizens. They suggested that the definition could discourage practitioners from taking any action that constitutes “preparation” that could also be considered “practice” (
The final rule does not adopt the language of the proposed rule and retains part of the language of the existing regulatory definition of “preparation,” stating that “preparation” consists “solely of filling in blank spaces on printed forms.”
The Department believes that the commenters' concerns have been sufficiently addressed. As noted,
For example, practitioners, without further obligation, may permissibly assist a pro se noncitizen in completing a change of address form (Form EOIR-33) and engage in “preparation,” provided that the practitioner completes a limited appearance form.
In contemplating changes to the manner of entry of appearance forms as suggested by the proposed rule, some commenters stated that completing an additional appearance form for actions that did not previously require an appearance form is too burdensome, especially when they must also complete the “preparer section” of a form. After careful deliberation, the Department determined that the informational needs of requiring such disclosure far outweigh the burden imposed on practitioners.
The goals of this rulemaking include providing greater flexibility to practitioners to be able to assist noncitizens appearing pro se before EOIR; providing increased access to legal assistance for such noncitizens, while adding protections to reduce the risk of individuals being victimized by “ghostwriting” and fraud; and ensuring practitioners are abiding by EOIR's Rules of Professional Conduct. The Department determined that identification of practitioners through the submission of an entry of limited appearance form, plus the additional requirements regarding the “preparer section” on forms and disclosure of assistance on other documents through name and signature, will reduce the risk to the public of unscrupulous individuals that currently prey on vulnerable noncitizens through “ghostwriting.” For example, the Department believes that, by increasing flexibility for practitioners who wish to provide varying types of assistance to noncitizens in proceedings before EOIR, the pool of individuals engaged in legitimate practices and available to assist noncitizens will expand, leaving less room for bad actors. Such requirements will also hold practitioners accountable for the document assistance they perform pursuant to the final rule.
Ghostwriting is a practice that occurs when an unidentified individual, whether a practitioner or non-practitioner, assists a noncitizen with or drafts pleadings, applications, petitions, motions, briefs, or other documents that are filed with EOIR. Ghostwritten documents can contain false or fraudulent information, sometimes unbeknownst to the noncitizen, and often present substandard, incomplete, inaccurate, or boilerplate work products. Ghostwriting is often a means for unscrupulous or unqualified individuals and other bad actors to deceive and mislead noncitizens and EOIR or, with the acquiescence of noncitizens, ghostwriting may be a means to perpetuate fraud and undermine proceedings.
As described in the NPRM, ghostwriting is harmful to parties and undermines the integrity of proceedings, candor to the tribunal, and
Importantly, under the final rule, allowing practitioners to enter an appearance for document assistance without further obligation to act on behalf of a pro se noncitizen should expand noncitizens' access to practitioner assistance. Indeed, commenters indicated that they would be able to provide more services to noncitizens if limited appearances for document assistance were permitted. Unqualified or unethical individuals and other bad actors should have a reduced ability to operate in immigration proceedings through “ghostwriting” because practitioners who may have been dissuaded from providing assistance if they could not limit their role to document assistance will be more willing to engage in a limited appearance, thereby furthering the ability of noncitizens to find authorized and competent practitioners who are willing to identify themselves and provide assistance. Identification will also enable noncitizens, EOIR, and other authorities to hold practitioners accountable for the quality and substance of the limited documentary assistance work they perform.
These benefits far outweigh the burdens of having to complete the entry of a limited appearance form, which is estimated to take only 6 minutes to complete, and the other disclosure requirements of the final rule.
Given the benefits of identifying practitioners who provide only document assistance before EOIR, the Department agrees with the commenters that separate appearance forms for the entry of a limited appearance are more appropriate than attempting to modify the existing appearance forms to capture this unique type of appearance. Further, the Department recognizes that revising the Form EOIR-27 and Form EOIR-28 to encompass substantially different circumstances could cause confusion over the practitioner's representation status. Thus, the Department created the Form EOIR-60 and Form EOIR-61 for practitioners' entry of a limited appearance rather than revising Form EOIR-27 and Form EOIR-28. These new forms provide the most efficient means for EOIR to track the identity of practitioners who have entered a limited appearance for document assistance, as distinct from those who have entered an appearance as practitioner of record.
Some commenters indicated that the Department did not allow the public an opportunity to comment on the draft forms contemplated for limited appearances. Pursuant to the Paperwork Reduction Act of 1995, agency discussion of the information collection and the provision of instructions for providing public comments in the associated rulemaking is sufficient to provide the required public notice.
When a Form EOIR-60 or Form EOIR-61 is completed, the final rule provides that it must not be filed as a standalone document. 8 CFR 1003.17(b)(1), 1003.38(g)(2)(i). Rather, a single Form EOIR-60 or Form EOIR-61 must be filed with the immigration court or the BIA, respectively, with the document on which a practitioner has provided assistance. If a practitioner prepares, drafts, or completes a set of documents that are filed together, a single Form EOIR-60 or Form EOIR-61 may be completed to accompany that set of documents.
The Form EOIR-60 and Form EOIR-61 requires the practitioner to provide the following data: practitioner's name; contact information; bar number (“BAR#”) or EOIR identification number (“EOIR ID#”),
In cases where a practitioner enters a limited appearance for document assistance, the noncitizen remains pro se and unrepresented in the EOIR proceedings.
Many commenters indicated that the NPRM's proposed revisions to the disciplinary rule, 8 CFR 1003.102(t), to delete the “pattern or practice” requirement, and instead include language that indicates that failure to file an appearance form even one time could result in disciplinary action, is problematic because a single mistake should not be sufficient to institute disciplinary action. Moreover, they raised concerns regarding the proposed revisions to 8 CFR 1003.102(u), which would penalize the
The Department agrees that 8 CFR 1003.102(t) should include language to clarify that a single instance of failing to file an appropriate entry of appearance form does not lead to disciplinary action. Therefore, the final rule amends 8 CFR 1003.102(t) to allow discipline of any practitioner who “repeatedly” fails to sign and file the appropriate entry of appearance form. “Repeatedly,” rather than “pattern or practice,” is an easily understood standard that is used for other grounds for discipline.
The final rule also amends 8 CFR 1003.102(u) to subject practitioners to discipline if they repeatedly “draft” notices, motions, briefs or claims that are filed with DHS or EOIR that rely on boilerplate language and reflect little or no attention to the specific facts or legal issues applicable to a client's case. This ground of discipline currently focuses on practitioners who repeatedly “file” such documents.
Commenters' concern about being subject to discipline for documents completed and filed by pro se noncitizens without practitioner assistance is unfounded. The use of template documents or form pleadings, drafted by a practitioner but later completed and filed by pro se noncitizens who add case-specific information without any assistance by the practitioner, need not be accompanied by a Form EOIR-60 or Form EOIR-61 or the practitioner's name and signature. Because the practitioner who created the template or form pleading did not provide
Further, the final rule creates a separate ground for discipline at 8 CFR 1003.102(w), which requires practitioners to sign documents in conformity with EOIR rules and any form instructions. This provision builds on and provides further clarity to the prohibition on practitioners failing to sign pleadings, applications, motions, or other filings that was previously included at 8 CFR 1003.102(t)(2).
Finally, the final rule makes changes to 8 CFR 1003.2 and 1003.3 to include references to when the new entry of appearance form, Form EOIR-60, must be utilized in filings regarding reopening before the BIA and when the form must be filed with a Notice of Appeal before the BIA, respectively. This clarification is necessary to inform practitioners that any document assistance with respect to filings regarding reopening before the BIA or a Notice of Appeal before the BIA falls under the scope of 8 CFR 1003.38 and thus requires an entry of appearance.
Additionally, the final rule moves (without change) the definition of the term “practitioner” from EOIR's Rules of Professional Conduct,
The NPRM provided for a 30-day notice and comment period as required pursuant to 5 U.S.C. 553. The proposed rule provided sufficient detail and rationale to permit interested parties to comment meaningfully. Indeed, the Department received a number of substantive comments recommending changes to the rule that have, in fact, been adopted in certain respects. For example, pursuant to the public input received, the final rule eliminates the proposed requirements to disclose fees and obtain a signed written attestation from the noncitizen and creates separate forms for entering a limited appearance. Despite the discussion of the relevant issues in the NPRM, some commenters contended that the 30-day comment period for this rule was insufficient because there were significant equities at stake, this rule was not time-sensitive, and the COVID-19 pandemic made it difficult to respond properly to the proposed rule on a short timeframe.
While the APA does not require a minimum specific length of time for the comment period, the Department believes the 30-day comment period was clearly sufficient given the limited set of issues addressed in the NPRM and the volume and detail of comments received.
The revisions to “practice” and “preparation,” at 8 CFR 1001.1(i) and (k), maintain the general framework of the definitions in the proposed rule, and also provide additional clarity about their scope. The changes to the regulatory text are within the scope of the notice provided by the NPRM, and the adopted changes are consistent with the public comments received. Therefore, the final rule is a logical outgrowth of the proposed agency action described in the NPRM
This final rule is being published with a 60-day delayed effective date, greater than the minimum 30-day period required by the Administrative Procedure Act. 5 U.S.C. 553(d).
The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Though many practitioners may qualify as small entities under the Regulatory Flexibility Act, the burdens of this rule will typically be limited to the submission of forms identifying their personal participation, a requirement estimated to require 6 minutes of time in each instance.
Practitioners who wish to represent noncitizens in person as practitioner of record in immigration proceedings are already required to submit a Form EOIR-27 or EOIR-28, and all individuals who prepare an application form or other form for a noncitizen are already required to disclose such preparation if the form requires it. This rule will require practitioners who provide document assistance to noncitizens to submit a Form EOIR-60 or EOIR-61, if they elect not to become the practitioner of record to represent them in EOIR proceedings. However, most, if not all, such practitioners are well-versed in submitting a similar Form EOIR-27 or EOIR-28 for entry of appearance in cases in which they do represent a noncitizen in proceedings before EOIR. The new Forms EOIR-60 or EOIR-61 are similar in nature to the existing appearance forms, and therefore, should be simple to complete. They are not expected to take more than 6 minutes to complete and will only involve providing information that the practitioner providing assistance already knows well—
The Department has also determined that the needs of requiring such disclosure far outweigh the burden imposed on practitioners. The goals of this rulemaking include providing greater flexibility to practitioners to be able to assist noncitizens appearing pro se before EOIR and increasing access to legal assistance for such noncitizens because practitioners who may have been dissuaded from providing assistance if they could not limit their role to document assistance will be more willing to engage in a limited appearance. The Department expects that this rulemaking will increase the number of competent practitioners willing to identify themselves to EOIR. These changes, in turn, will likely diminish the risk of individuals being exploited by unaccountable “ghostwriting” because unqualified and unethical individuals should have a reduced ability to operate in immigration proceedings. Finally, the enhanced identification provisions of the rulemaking will ensure that practitioners are abiding by EOIR's Rules of Professional Conduct by allowing EOIR to hold practitioners accountable for the quality and substance of their work.
In order to achieve these goals, EOIR must have a means of accurately
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (as adjusted for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Congressional Review Act. However, the Department will be submitting the required reports under the Congressional Review Act to the Government Accountability Office and to the House and Senate.
The Office of Information and Regulatory Affairs (OIRA) has determined that this rule is a “significant regulatory action” under section 3(f) of Executive Order 12866 (Regulatory Planning and Review). Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review. This rule has been drafted and reviewed in accordance with Executive Order 12866's section 1(b), Principles of Regulation, and in accordance with section 1(b) of Executive Order 13563 (Improving Regulation and Regulatory Review), General Principles of Regulation.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
As discussed above, practitioners who wish to act as practitioner of record for noncitizens in person in immigration proceedings are already required to submit Form EOIR-27 or EOIR-28 and all individuals who prepare an application form for a noncitizen are already required to disclose such preparation if the form requires it. Although this rule will require practitioners who provide document assistance to noncitizens but elect not to become the practitioner of record to represent them in court, to submit a Form EOIR-60 or EOIR-61, most, if not all, such practitioners are well-versed in submitting a similar Form EOIR-27 or EOIR-28 for cases in which they represent a noncitizen in proceedings before EOIR.
Moreover, the limited appearance form, which substantially mirrors existing forms, will not add any significant time burden. The new Forms EOIR-60 or EOIR-61 are similar in nature to the existing appearance forms and are not expected to take more than 6 minutes to complete. They only involve providing information that the practitioner providing assistance already knows well—
Thus, for the reasons explained above and in the NPRM, the expected costs of this rule are likely to be
This rule will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The Department of Justice, through EOIR, has submitted an information collection request to OMB for review and clearance in accordance with review procedures of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. The Department, through EOIR, previously submitted this rulemaking, including a request for a new information collection (ICR Ref. No. 202111-1125-001), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
The Department received comments related to the proposed information collections associated with this rulemaking. In the proposed rule, the Department stated that it would revise Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge; Form EOIR-27; and Form EOIR-28, to allow for limited appearances as contemplated in this rule.
Under the current regulation, it is estimated that it takes a total of 6 minutes to complete an entry of appearance form. At this time, it is difficult for EOIR to estimate the total receipts it will receive for this new collection. Pursuant to the NPRM, EOIR estimated the total receipts would be at least as many receipts as received for the other two forms for the entry of appearance before the Immigration Court (Form EOIR-28) and the Board of Immigration Appeals (Form EOIR-27). These forms are used for practitioners who wish to appear on behalf of a noncitizen in pending proceedings and remain the practitioner of record to which all obligations and responsibilities attach. Forms EOIR-28 and EOIR-27 are not used for limited appearance purposes, but EOIR expects that at least some of those practitioners will enter limited appearances to assist noncitizens with document filings. Therefore, in order to not underestimate the burden, EOIR will assume that it will receive as many entries for limited appearances as it does for full appearances. Therefore, the total number of submissions of the Forms EOIR-60 and EOIR-61 are expected to be 841,029 (the total receipts for the EOIR-27 (53,816) and EOIR-28 (787,213) for FY2019 as provided in the NPRM). The total public burden of these revised collections is estimated to be 84,102.9 burden hours annually (for Form EOIR-27, 53,816 noncitizens (FY 2019) × 1 response per noncitizen × 6 minutes per response = 5,381.6 burden hours) + (for Form EOIR-28, 787,213 noncitizens (FY 2019) × 1 response per noncitizen × 6 minutes per response = 78,721.3 burden hours) = 84,102.9 burden hours).
Following the new ICR's review and approval by the Office of Information and Regulatory Affairs (OIRA), the Department will publish notice of the new forms in the
Administrative practice and procedure, Immigration.
Administrative practice and procedure, [Noncitizens], Immigration, Legal services, Organization and functions (Government agencies).
Accordingly, for the reasons stated in the preamble, parts 1001 and 1003 of title 8 of the Code of Federal Regulations are amended as follows:
5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296, 116 Stat. 2135; Title VII of Pub. L. 110-229.
(i) The term
(k) The term
(ff) The term
5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
(g) * * *
(1)
(a) * * *
(3)
(a)
(1)
(2)
(3)
(b)
(1)
(2)
(c)
(g) In proceedings before the Board on behalf of a respondent, a practitioner must enter an appearance using Form EOIR-27 or Form EOIR-60.
(1)
(i)
(ii)
(iii)
(2)
(i)
(ii)
(3)
Notwithstanding the filing of a Form EOIR-27 or Form EOIR-60, the practitioner must identify themselves by name, accompanied by their signature, on any document filed or intended to be filed with the Board pursuant to an appearance under paragraph (g)(1) or (2) of this section.
(b)
The revisions and addition read as follows:
(t) Repeatedly fails to submit a signed and completed entry of appearance using the appropriate form in compliance with applicable rules and regulations, including 8 CFR 292.4(a), 1003.17, and 1003.38;
(u) Repeatedly drafts notices, motions, briefs, or claims that are filed with DHS or EOIR that reflect little or no attention to the specific factual or legal issues applicable to a client's case, but rather rely on boilerplate language indicative of a substantial failure to competently and diligently represent the client;
(w) Repeatedly fails to sign any pleading, application, motion, petition, brief, or other document prepared, drafted, or filed with DHS or EOIR. The practitioner's signature must be in the practitioner's individual name and must be handwritten or electronically in conformity with the rules and instructions of the applicable system.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A and 601-3R Variants) airplanes. This AD was prompted by reports that during certain operating modes, the flight guidance/autopilot does not account for engine failure while capturing an altitude. This AD requires revising the existing airplane flight manual (AFM) to provide the flightcrew with a new limitation and procedure for operation during certain
This AD is effective October 19, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 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
Steven Dzierzynski, Aerospace Engineer, Avionics and Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; email
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-02, dated February 13, 2020 (TCCA AD CF-2020-02), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes. The NPRM published in the
The FAA received no comments on the NPRM or on the determination of the cost to the public.
Since the FAA issued the NPRM, TCCA revised AD CF-2020-02 and issued TCCA AD CF-2020-02R1, dated August 11, 2022 (TCCA AD CF-2020-02R1) (also referred to as the MCAI). TCCA stated the applicability was revised to remove Model CL-600-2B16 (604 Variants) as it was determined that these airplanes do not utilize ALTSEL, ASEL and ALTS CAP modes in their configurations. TCCA also stated that the AFM references for these airplanes were removed from the TCCA AD. You may examine the MCAI in the AD docket on the internet at
The FAA concurs with the change to the applicability because Model CL-600-2B16 (604 Variants) airplanes are not affected by the identified unsafe condition. The FAA has revised the applicability of this AD accordingly. The FAA has also removed the AFM references for these airplanes from this final rule and revised the Costs of Compliance paragraph in this final rule to specify there are 123 affected U.S. airplanes.
The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes and the changes described previously, 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 has issued the following service information. This service information contains a new AFM limitation and procedure for operation during certain flight modes. These documents are distinct since they apply to different airplane configurations. These configurations may include the presence or absence of winglets, incorporation of service bulletin 601-0300 which introduces an airspeed limitation placard, and the type of engine installed on the airplane.
• Automatic Flight Control System, Systems Limitations, Limitations, Bombardier Canadair Challenger Model CL-600-2A12, AFM, Product Support Publication (PSP) No. 601-1B-1, Revision 85, dated June 16, 2021.
• Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Bombardier Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1B-1, Revision 85, dated June 16, 2021.
• Automatic Flight Control System, Systems Limitations, Limitations, Bombardier Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1-1, Revision 96, dated June 16, 2021.
• Engine Failure in Climb During ASEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Bombardier Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1-1, Revision 96, dated June 16, 2021.
• Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-1A11, AFM, Product Publication No. 600, Revision A115, dated June 16, 2021.
• Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Normal Procedures, Canadair Challenger Model CL-600-1A11, AFM, Product Publication No. 600, Revision A115, dated June 16, 2021.
• Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-1A11, AFM, PSP No. 600-1, Revision 107, dated June 16, 2021.
• Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model
• Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A, Revision 129, dated June 16, 2021.
• Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A, Revision 129, dated June 16, 2021.
• Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A-1, Revision 83, dated June 16, 2021.
• Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A-1, Revision 83, dated June 16, 2021.
• Automatic Flight Control System Systems Limitations, Limitations, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1B, Revision 87, dated June 16, 2021.
• Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1B, Revision 87, dated June 16, 2021.
• Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1, Revision 107, dated June 16, 2021.
• Engine Failure in Climb During ASEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1, Revision 107, dated June 16, 2021.
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 123 airplanes of U.S. registry. The FAA estimates the following costs to comply with 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 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 October 19, 2022.
None.
This AD applies to the Bombardier, Inc., airplanes, certificated in any category, identified in paragraphs (c)(1) through (3) of this AD.
(1) Model CL-600-1A11 (600), serial numbers 1001 through 1085 inclusive.
(2) Model CL-600-2A12 (601), serial numbers 3001 through 3066 inclusive.
(3) Model CL-600-2B16 (601-3A and 601-3R Variants), serial numbers 5001 through 5194 inclusive.
Air Transport Association (ATA) of America Code 22, Auto flight.
This AD was prompted by reports that during certain operating modes, the flight guidance/autopilot does not account for engine failure while capturing an altitude. The FAA is issuing this AD to address a possible engine failure during or before a climb while in ALTSEL, ASEL or ALTS CAP mode, which could cause the airspeed to drop significantly below the safe operating speed. Prompt crew intervention may be required to maintain a safe operating speed.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD: Revise the existing AFM to incorporate the information specified in the limitation and procedure specified in the applicable AFM specified in figure 1 to paragraph (g) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2020-02R1, dated August 11, 2022, for
(2) For more information about this AD, contact Steven Dzierzynski, Aerospace Engineer, Avionics and Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; 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) Automatic Flight Control System, Systems Limitations, Limitations, Bombardier Canadair Challenger Model CL-600-2A12, Airplane Flight Manual (AFM), Product Support Publication (PSP) No. 601-1B-1, Revision 85, dated June 16, 2021.
(ii) Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Bombardier Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1B-1, Revision 85, dated June 16, 2021.
(iii) Automatic Flight Control System, Systems Limitations, Limitations, Bombardier Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1-1, Revision 96, dated June 16, 2021.
(iv) Engine Failure in Climb During ASEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Bombardier Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1-1, Revision 96, dated June16, 2021.
(v) Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-1A11, AFM, Product Publication No. 600, Revision A115, dated June 16, 2021.
(vi) Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Normal Procedures, Canadair Challenger Model CL-600-1A11, AFM, Product Publication No. 600, Revision A115, dated June 16, 2021.
(vii) Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-1A11, AFM, PSP No. 600-1, Revision 107, dated June 16, 2021.
(viii) Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-1A11, AFM, PSP No. 600-1, Revision 107, dated June 16, 2021.
(ix) Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A, Revision 129, dated June 16, 2021.
(x) Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A, Revision 129, dated June 16, 2021.
(xi) Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A-1, Revision 83, dated June 16, 2021.
(xii) Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1A-1, Revision 83, dated June 16, 2021.
(xiii) Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1B, Revision 87, dated June 16, 2021.
(xiv) Engine Failure in Climb During ALTSEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2A12, AFM, PSP No. 601-1B, Revision 87, dated June 16, 2021.
(xv) Automatic Flight Control System, Systems Limitations, Limitations, Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1, Revision 107, dated June 16, 2021.
(xvi) Engine Failure in Climb During ASEL, Airplane Handling Procedures Following Engine Failure, Abnormal Procedures, Canadair Challenger Model CL-600-2B16, AFM, PSP No. 601A-1, Revision 107, dated June 16, 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), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPS) and associated Takeoff Minimums and Obstacle Departure procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective September 14, 2022. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 14, 2022.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30. 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Information Services, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg. 29, Room 104, Oklahoma City, OK 73169. Telephone (405) 954-4164.
This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for Part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective September 14, 2022. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 14, 2022.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Information Services, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, email
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg. 29, Room 104, Oklahoma City, OK 73169. Telephone: (405) 954-4164.
This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for Part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Office of National Marine Sanctuaries (ONMS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Interim final rule; delay of effective date.
On May 13, 2022, the National Oceanic and Atmospheric Administration (NOAA) published an interim final rule that appeared in the
As of September 14, 2022, the effective date for the interim final rule published at 87 FR 29606, May 13, 2022, and delayed at 87 FR 37728, June 24, 2022, is further delayed until January 24, 2023.
Vicki Wedell, NOAA Office of National Marine Sanctuaries, (240) 533-0650,
In response to the interim final rule published on May 13, 2022 (87 FR 29606), which updated and streamlined ONMS regulations, NOAA received eight comments before the end of the comment period on June 13, 2022. The submitted comments are posted at
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary of Commerce to designate, manage, and protect, as a national marine sanctuary, any area of the marine environment that is of special national significance due to its conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities (16 U.S.C. 1431
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA, the Agency, or we) is issuing a final rule to specify the deadline and content for submission of an annual summary of investigational drugs supplied under the Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2017 (Right to Try Act) and the uses for which the investigational drugs were supplied. This final rule implements a provision in the Right to Try Act that requires sponsors and manufacturers who provide an “eligible investigational drug” under the provisions of the Right to Try Act to submit to FDA an annual summary of such use, and directs FDA to specify by regulation the deadline of submission.
This rule is effective November 14, 2022. For additional information on the effective and compliance dates, see section V of this document.
For access to the docket to read background documents or comments received, go to
The purpose of this rule is to implement provisions of the Federal Food, Drug, and Cosmetic Act (FD&C Act), added by the Right to Try Act, which requires sponsors and manufacturers who provide an “eligible investigational drug” under the Right to Try Act to submit to FDA an annual summary of such use, and directs FDA to specify by regulation the deadline of submission. The rule provides information on the necessary contents of the annual summary and the deadline for its submission.
The rule adds a new subpart to the regulations, to specify the deadline and content for submission of an annual summary of investigational drugs supplied under the Right to Try provisions of the FD&C Act and the uses for which they were supplied. The Right to Try Act provides that the manufacturer or sponsor of an eligible investigational drug shall submit to FDA an annual summary of any use of such drug supplied under the FD&C Act. Per the statute, the summary shall include the number of doses supplied, the number of patients treated, the use for which the drug was made available, and any known serious adverse events from use of the drug.
The enacted provisions of the Right to Try Act, in conjunction with FDA's general rulemaking authority serve as FDA's legal authority for this rule.
This final rule establishes the deadline for submission of annual summaries of use of investigational drugs supplied under the FD&C Act. The rule also establishes the required contents of these submissions.
The benefits of this rule consist of societal and public health outcomes that may accrue from the disclosure of the use of investigational drugs and any known serious adverse events provided in these annual summary reports. There is no data that would allow us to predict the magnitude of generated benefits, and thus we are unable to quantify the expected benefits of this rule.
Costs are estimated as the time spent by firms to prepare and submit these annual summary reports. The total estimated present value of this rule's
On May 30, 2018, the Right to Try Act (Pub. L. 115-176) was signed into law, creating section 561B of the FD&C Act (21 U.S.C. 360bbb-0a). The Right to Try Act amends the FD&C Act to establish an alternative option for patients who meet certain criteria to request access to certain unapproved drug products and for sponsors and manufacturers who agree to provide those certain unapproved drug products, other than through FDA's expanded access program.
FDA received fewer than 50 comments to the proposed rule from healthcare professionals, patient advocacy groups, regulated industry, scientific and academic experts, and private citizens. FDA received comments on the following: (1) the annual summary submission deadline; (2) the definition of “manufacturer”; (3) reporting information in the annual report on dosing, any known serious adverse events, clinical outcomes, patient demographic information, and the amount, if any, charged for the product; and (4) general comments requesting clarifications. FDA also received general comments both in support of and against the proposed annual reporting rule as well as the entire Right to Try Act.
FDA has extended the submission date for the first annual summary report from 60 calendar days after the final rule becomes effective as proposed to a specific date of March 31, 2023.
The Right to Try Act amended Chapter V of the FD&C Act by inserting section 561B. New section 561B(d)(1) of the FD&C Act requires FDA to specify by regulation the deadline of submission of an annual summary of the use of any eligible investigational drug under the Right to Try Act by manufacturers or sponsors and specifies the contents of such summaries. This section, in conjunction with our general rulemaking authority in section 701(a) of the FD&C Act (21 U.S.C. 371(a)), serves as our legal authority for this final rule.
We describe and respond to the comments in sections IV.B through IV.J of this document. We have numbered each comment to help distinguish between different comments. We have grouped similar comments together under the same number, and, in some cases, we have separated different issues discussed in the same comment and designated them as distinct comments for purposes of our responses. The number assigned to each comment or comment topic is purely for organizational purposes and does not signify the comment's value or importance or the order in which comments were received.
(Comment 1) Some comments made general remarks supporting or opposing the proposed reporting rule or Right to Try in general without focusing on a particular proposed provision. These comments either supported or opposed the proposed rule, without any suggestions for specific changes.
(Response 1) FDA made no changes in response to these comments, as there were no suggestions for specific changes. In regards to comments opposing issuance of the proposed rule, we do not agree that FDA should not issue this rule. Section 561B(d) of the FD&C Act provides that “the Secretary shall specify by regulation” the deadline of submission of annual summaries. This rule implements the statutory directive in section 561B(d) of the FD&C Act, and FDA concludes that the rulemaking is necessary to establish deadline requirements for the submission of annual summaries.
(Comment 2) Several comments focused on proposed § 300.200(b)(1) regarding the submission deadline. These comments requested a change of the submission deadline for the first annual summary from 60 calendar days after the rule becomes effective to 90 calendar days. Some comments also requested that the first annual summary cover a 12-month time period beginning from the finalization of the Proposed Rule onward. Some comments requested that for the initial annual summary, the reporting period should begin on the date the final rule is published and end on December 31 of that calendar year.
(Response 2) FDA agrees with the proposal to change the submission deadline for the first annual summary from 60 calendar days after the rule becomes effective to 90 calendar days. Regarding the proposals to change the reporting periods for the first required annual summaries, FDA disagrees that use of investigational drugs under the Right to Try Act prior to the finalization of this rule should not be reported. Rather than directing manufacturers or sponsors to only report Right to Try Act uses after FDA's rulemaking is completed, the Right to Try Act directs manufacturers or sponsors to submit to FDA an annual summary of “any use” of a drug under the law (section 561B(d)(1) of the FD&C Act). Therefore, requiring submissions of Right to Try
(Comment 3) Several comments addressed combining Right to Try reporting with other FDA regulatory reporting requirements, noting that it may be less burdensome and facilitate FDA having all of the data on an investigational product together. Some comments requested the inclusion of the annual report on Right to Try uses as an addendum or section within the investigational new drug (IND) annual report required under § 312.33 (21 CFR 312.33), in addition to a separate report. Some comments requested aligning the Right to Try Act reporting with the annual reporting required under the Expanded Access regulations and aligning the reporting of known serious adverse events under proposed § 300.200(c)(5) with current serious adverse event reporting regulations under § 312.32 (21 CFR 312.32).
(Response 3) FDA disagrees with the comments requesting combining Right to Try reporting with other FDA-required reports. The IND reporting regulations do not capture all the information required under Right to Try, so it is not accurate that compliance with § 312.32 will provide compliance with the reporting requirements in this rule. Consequently, the information detailed for the Right to Try submission would have to be added to the IND annual report. Moreover, existing IND annual reports under § 312.33 are due to FDA based upon the date an IND application was submitted to FDA. These IND annual reports are submitted throughout the year and not at a single point in time for all active applications, which is consistent with international harmonization efforts. It would be extremely difficult and resource-intensive for FDA to examine all IND annual reports for the sole purpose of identifying those potentially few reports that have Right to Try information so that we can compile the annual summary required by section 561B(d)(2) of the FD&C Act. In addition, it is efficient to have separate reporting requirements for Right to Try Act and other investigational drug uses because section 561B(c) of the FD&C Act limits FDA's use of clinical outcomes associated with the use of eligible investigational drugs under the Right to Try Act in ways that are not applicable to other uses of INDs. For these reasons, it is more efficient to implement the annual reporting and summary requirements of the Right to Try Act by requiring the annual reports to be submitted as separate reports to FDA.
FDA does not intend to object if sponsors refer to their Right to Try activities in their IND annual report required under § 312.33 as long as such information is labeled as Right to Try and is also included in the separate Right to Try annual report. The reporting requirements in § 312.33 include a provision that requires sponsors to identify the IND numbers that correspond to the products used under Right to Try. This will facilitate the integration into FDA systems and allow FDA to link all information received on a particular IND or new drug application or biologics license application.
(Comment 4) Some comments made recommendations on proposed § 300.200(c)(2) regarding dosing. Section 300.200(c)(2) proposed to require that the annual summary include the total number of doses supplied by the manufacturer or sponsor to eligible patients for use under the Right to Try Act. We also proposed that each dose of an eligible investigational drug supplied for an eligible patient shall be counted as a dose supplied. Several comments recommended that FDA require sponsors or drug manufacturers to report the number of doses per patient, rather than the cumulative number of doses supplied of the drug overall.
(Response 4) As noted in the proposed rule, FDA only proposed to require reporting on the total number of doses supplied. This will make the reporting requirements less burdensome for sponsors and is consistent with the requirements in the Right to Try Act, which does not require that information be submitted on a per patient basis. It is also consistent with our public health oversight needs, because at this time FDA does not foresee a need for more detailed information and FDA can follow up with the submitter if more information would be useful to FDA as it reviews the annual summary. However, sponsors may voluntarily provide an itemized list of doses per patient in their tabular summary when reporting any known serious adverse events; FDA encourages sponsors to include information on the number of doses supplied per patient when reporting on known serious adverse events even though this rule does not require this information.
(Comment 5) One comment expressed that the example given in the proposed rule of a tabular summary goes beyond the level of information required by the Right to Try Act.
(Response 5) FDA disagrees with the comment, because the tabular summary example included in the proposed rule showed information that sponsors may choose to submit to provide context around the known serious adverse event information. Specifically, the sample tabular summary that FDA provided in the proposed rule included such non-mandatory information as a field for a Patient ID number and for grading the severity of known serious adverse events. However, we did not propose to require that manufacturers or sponsors submit this information (and indeed the final rule does not require submission of such information).
To the extent the comment seeks a tabular summary example that includes only mandatory information, the tabular summary below highlights (bolded text) the mandatory information (although the specific format is not required). The summary may include optional contextual data (
Some commenters made recommendations on proposed § 300.200(c)(5) regarding adverse event reporting. In that provision, we proposed to require that annual reports submitted to FDA include a tabular summary of any known serious adverse events, including resulting outcomes, experienced by patients treated with the eligible investigational drug under the Right to Try Act.
(Comment 6) One comment recommended that manufacturers and sponsors obtain data on the route of administration of the drug in the case of an adverse event.
(Response 6) While the Agency welcomes manufacturers or sponsors to include information they conclude is relevant to understanding a known serious adverse event, FDA believes we can adequately fulfill our public health role without including such a requirement; if FDA has questions about route of administration that are relevant to our review, we may pose such questions to manufacturers or sponsors.
FDA agrees that information on routes of administration may in some cases aid FDA in understanding the circumstances surrounding an adverse event. However, many drugs are not able to support multiple routes of administration, so for these drugs FDA may not gain any helpful information if we required reporting regarding route of administration.
(Comment 7) Some comments recommended that FDA encourage earlier reporting of known serious adverse events prior to the required due date for the annual summary.
(Response 7) FDA disagrees because section 561B(d)(1) of the FD&C Act directs that the reporting be “annual.” Nevertheless, we note that sponsors can always report safety data to FDA earlier than the timeframes required by this rule in accordance with § 312.32 (while also ensuring compliance with the reporting timeframes under this rule).
(Comment 8) One comment expressed concern with the definition of a “known serious adverse event,” arguing that only disclosing known serious adverse events is too limiting and will not provide enough information to evaluate a drug's associated risks. Instead, the comment recommends that FDA require reporting of suspected adverse reactions. One comment also requested that FDA require manufacturers and sponsors to affirmatively seek information about known serious adverse events.
(Response 8) FDA disagrees with changing the proposed definition of “known serious adverse event” to encompass suspected serious adverse reactions. We consider suspected adverse reactions to be adverse events for which there is a reasonable possibility that the drug caused the adverse event (see,
With respect to the comment requesting that FDA require manufacturers or sponsors to affirmatively seek information about serious adverse events, we disagree. FDA does not seek to make this rule more burdensome than is needed to efficiently implement the Right to Try Act, and at this time it is not clear that any such investigation requirement would result in relevant information for purposes of FDA's Right to Try oversight role. Under the final rule, known serious adverse events must be reported. Nevertheless, sponsors are not constrained from including additional information they find to be relevant regarding a known serious adverse event.
In proposed § 300.200(a)(5), we proposed to define a “manufacturer or sponsor” as the person who meets the definition of “sponsor” in § 312.3 (21 CFR 312.3) for the eligible investigational drug; has submitted an application for the eligible investigational drug under section 505(b) of the FD&C Act (21 U.S.C. 355(b)) or section 351(a) of the Public Health Service Act (42 U.S.C. 262(a)); or produces the eligible investigational drug provided to an eligible patient on behalf of such persons.
(Comment 9) Some commenters made recommendations on proposed § 300.200(a)(5) regarding the definition of “manufacturer or sponsor.” One comment recommended the exclusion of contract manufacturing organizations from the term “manufacturer or sponsor” because a contract manufacturer may not possess the necessary information to complete the annual report. One comment requested that FDA limit the definition of “manufacturer or sponsor” to the treating physician because for drugs supplied through Right to Try, treating physicians are responsible for monitoring their patients' use of the drug and their safety.
(Response 9) FDA agrees that a contract manufacturing organization that is not closely connected to the clinical investigation and approval process should not be considered a “manufacturer or sponsor” under this rule, and therefore we have updated the regulatory text to specify that a contract manufacturer is not a “manufacturer or sponsor.” We are making this change because we believe that only those entities that are closely connected to the clinical investigation or approval process should submit annual summaries, and contract manufacturers
Regarding limiting the definition of “sponsor” to the treating physician, FDA disagrees because we think there will be less confusion if we use the regulatory definition of “sponsor” in § 312.3. This is a definition that industry and researchers are familiar with, and one that Congress likely understood when it used the term in the Right to Try Act. We also note that the Right to Try Act refers to “physician[s],” but not in the context of reporting annual summaries; rather, section 561B(a)(1) of the FD&C Act refers to “physician[s]” in the context of the definition of an eligible patient—suggesting that Congress understood “physician” and “sponsor” to not be synonymous.
(Comment 10) One comment requested that FDA require sponsors to include the physicians' names and the total number of patients each physician has certified over each reporting period because of potential pressure for physicians to provide access to drugs under Right to Try.
(Response 10) FDA disagrees. Under section 561B(a) of the FD&C Act, the “eligible patient” definition provides for the certification by a physician; FDA information about the identity of the physician is not needed for FDA to review the annual summary data as provided in the Right to Try Act. Therefore, FDA does not seek to require any information related to the physician.
(Comment 11) One comment requested that manufacturers assign patient identification numbers to track patients.
(Response 11) FDA recommends this practice only with respect to patients who experienced a known serious adverse event that is included in the Right to Try annual summary, to help distinguish between patients and events included in the annual summary. However, FDA does not believe it is necessary to require the assignment of patient identification numbers. Manufacturers or sponsors can take steps to ensure that they adequately track relevant safety information without the use of patient identification numbers, and if FDA has questions about information included in an annual summary FDA may contact the manufacturer or sponsor to clarify.
(Comment 12) Some commenters made recommendations regarding inclusion of patient demographic information. Some comments requested that the rule include a non-mandatory request for such other information to provide a more comprehensive picture on Right to Try use, such as the demographics of patients for whom Right to Try access was requested; information about requests that were denied, including reason for denial; amount charged for the product (if any); and overall patient outcomes from the Right to Try use. Other commenters asked for reporting of patient demographic information to be mandatory.
(Response 12) Congress specified the information FDA was to collect for the annual summary in the Right to Try Act and did not include demographic information. We encourage sponsors and/or manufacturers to provide demographic data, individual patient information, and other types of data suggested in the comments as optional additional contextual information when submitting the annual summary.
In proposed § 300.200(c)(5), we proposed to require that the annual summary include a tabular summary of any known serious adverse events, including resulting outcomes, experienced by patients treated with the eligible investigational drug under the Right to Try Act.
(Comment 13) One comment requested that FDA require manufacturers and sponsors to report all relevant clinical outcome data after treatment.
(Response 13) FDA disagrees. Congress did not specify that manufacturers or sponsors provide information about all treatment outcomes, and at this time we do not see a need to require this information in annual summaries. If FDA has questions about treatment outcomes not associated with known serious adverse events, FDA can request that information as appropriate.
(Comment 14) One comment disagreed with the proposed requirement that annual summaries include information about outcome data. The comment stated that patients who receive drugs under Right to Try are being treated individually and not as a part of a clinical trial, so treatment plans may vary.
(Response 14) We disagree. The proposed requirement is to report any known serious adverse events, including resulting outcomes; the outcomes are tied specifically to the adverse event, and not the outcome of each individual use of an eligible drug, as the comment suggests. Requiring information about outcomes resulting from known serious adverse events is important so that FDA can meet the directive in section 561B(d)(2) of the FD&C Act, that FDA shall post an annual summary report including information specific to “clinical outcomes.” See section 701(a) of the FD&C Act (providing FDA with authority to promulgate regulations for the efficient enforcement of the FD&C Act). In addition, the outcome of the adverse event can provide important context to enable FDA to determine if the outcomes are critical to understanding safety issues associated with the eligible investigational drug without requesting additional information for each event. We also note that the Agency routinely evaluates safety outcomes outside of a clinical trial, so just because eligible patients may not be part of a clinical trial does not mean we are unable to review information about their outcomes.
(Comment 15) One comment requested more information on how the Secretary of Health and Human Services would inform sponsors that the Agency's use of a drug's clinical outcome is critical to making a safety determination on the use of the drug.
(Response 15) This comment relates to section 561B(c) of the FD&C Act, which includes certain restrictions on certain FDA uses of a clinical outcome associated with Right to Try unless FDA makes a determination that use of such clinical outcome is critical to determining the safety of the eligible investigational drug. If FDA makes such a determination, section 561B(c)(2) of the FD&C Act provides that FDA “shall provide written notice of such determination to the sponsor, including a public health justification for such determination, and such notice shall be made part of the administrative record.” FDA does not believe additional clarification is necessary because the statute specifies that FDA's notification to the sponsor shall be “written.” The
(Comment 16) One comment requested an explicit statement from FDA that there are no reporting requirements for sponsors or manufacturers who choose not to grant a request to provide products under Right to Try.
(Response 16) FDA is not sure what kind of explicit statement the comment seeks. Neither the Right to Try Act nor this final rule require parties to report to FDA when they have declined to distribute drugs under the Right to Try Act. FDA notes that there is no requirement that a manufacturer or sponsor participate in Right to Try.
(Comment 17) One comment requested clarity on whether an annual summary is only required if new access to a drug has been granted during the reporting period or if sponsors should also report on ongoing use from a prior reporting period.
(Response 17) Under § 300.200(c)(2), the manufacturer or sponsor must report the total number of doses supplied. The relevant period of time is the period of time covered by the annual summary. Therefore, the number of doses supplied during the annual summary period is what should be reported. For example, if Patient A started using the drug in the previous reporting period and continues to use that drug in the current reporting period, the manufacturer or sponsor should report how many doses were supplied during the current reporting period.
(Comment 18) One comment requested that FDA consider providing criteria on how a patient would submit a request for a drug under Right to Try.
(Response 18) The Right to Try Act does not outline a role for FDA with respect to the process by which patients may request access to eligible investigational drugs. Therefore the comment asks FDA to provide information about a matter that is beyond the scope of this rulemaking. We decline.
(Comment 19) One comment requested additional detail on FDA's intent to post online an annual summary report and expressed interest in how FDA's posting of the annual summary report “may increase awareness about the availability of investigational drugs” as noted in the “Costs and Benefits” section of the preamble to the Proposed Rule. One comment also stated that the information FDA includes in the annual summary report does not convey or imply any conclusions regarding the safety or efficacy of the products provided under the Right to Try Act, and it may also be helpful for FDA's annual summary report website to link to additional information regarding “Expanded Access.”
(Response 19) FDA will follow the requirements in the Right to Try Act regarding posting an annual summary of uses of drugs under the statute. As stated in the preamble to the proposed rule, providing this information will increase awareness about the availability of investigational drugs because the report will make available data about the use of eligible investigational drugs. With respect to the comment stating that the information included in FDA's annual summary report will not convey or imply any conclusions about a drug's safety or efficacy, we agree. The information included in FDA's annual summary reports will be purely factual and will not reflect any FDA evaluations of the eligible investigational drugs. With respect to the comment requesting that our website link to information about “Expanded Access,” we will consider that comment when we design our website for Right to Try annual summary reports.
This final rule becomes effective 60 days after publication in the
Thus, for a manufacturer or sponsor of an eligible investigational drug that has supplied an eligible patient with an eligible investigational drug under section 561B of the FD&C Act between the period from enactment of section 561B (May 30, 2018) and December 31, 2022, the manufacturer or sponsor shall submit to FDA a first annual summary covering that period no later than March 31, 2023. After this annual report, the manufacturer or sponsor must submit a report that covers every January 1 through December 31 annual period by no later than March of the following year, for every year in which the manufacturer or sponsor has supplied a drug under the Right to Try Act. Therefore, a report submitted in March 2024, would cover the period January 1, 2023, through December 31, 2023.
We have examined the impacts of the final 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). We find that this final 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 the effects are low in cost and minimally dispersed, we certify that the final 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 issuing “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 one year.” The current threshold after adjustment for inflation is $165 million, using the most current (2021) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.
This final rule implements a statutory requirement in the Right to Try Act that sponsors and manufacturers who provide an eligible investigational drug under the Right to Try Act to eligible patients submit to FDA an annual summary of such use. The Right to Try Act requires FDA to specify by regulation the deadline and requires that submissions include certain information.
The benefits of this final rule consist of societal and public health outcomes that may accrue from the disclosure of the use of investigational drugs and any known serious adverse events provided
In addition, based on the information in these annual summaries, FDA intends to post an annual summary report in accordance with section 561B(d)(2) of the FD&C Act. FDA's posting of these reports may increase awareness about the availability of investigational drugs. In some cases, access to such drugs may help treat future patients. There is no data that would allow us to predict the magnitude of generated benefits, and thus we are unable to quantify the expected benefits of this rule.
Costs are calculated as the time spent by firms to prepare and submit annual summary reports based on participation in Right to Try Act requests from eligible patients for investigational new treatments. The total estimated present value of this rule's costs is $37,132 at a 7 percent discount rate and $45,818 at a 3 percent discount rate (in 2020 dollars). The annualized cost of this rule over 10 years is $5,287 at a 7 percent discount rate and $5,371 at a 3 percent discount rate. Consistent with Executive Order 12866, table 1 provides the costs and a description of benefits for this final rule over a 10-year period.
We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of the final rule. The full analysis of economic impacts is available in the docket for this final rule (Ref. 1) and at
We have determined under 21 CFR 25.30(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.
This final rule contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The title, description, and respondent description of the information collection provisions are shown in the following paragraphs with an estimate of the annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.
Regulations in § 300.200 require that sponsors and manufacturers submit to FDA an annual summary no later than March 31 of each year, including data for the preceding calendar year, which is the period from January 1 through December 31. The first report will cover the time period between enactment of the Right to Try Act (March 30, 2018) and December 31, 2022. We will provide instruction on the FDA Right to Try web page at
• The name of the eligible investigational drug and applicable IND number.
• The number of doses supplied to the eligible patient.
• The number of eligible patients treated.
• The use for which the eligible investigational drug was made available to the eligible patient.
• Any known serious adverse events and outcomes that the eligible patient treated with an eligible investigational drug experienced.
As discussed in section II.F of the Final Regulatory Impact Analysis, we estimate the burden of the information collection as follows:
Consistent with estimates in our Final Regulatory Impact Analysis, we estimate that six sponsors and manufacturers will prepare and submit six annual summaries and assume it takes 2.5 hours to prepare and submit each summary, which results in a total of 15 hours annually.
The information collection provisions in this final rule have been submitted to OMB for review as required by section 3507(d) of the Paperwork Reduction Act of 1995.
Before the effective date of this final rule, FDA will publish a notice in the
We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. We have determined that the 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 the 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 rule in accordance with the principles set forth in Executive Order 13175. We have determined that the rule does not contain policies that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Accordingly, we conclude that the rule does not contain policies that have tribal implications as defined in the Executive Order and, consequently, a tribal summary impact statement is not required.
The following reference is on display at the Dockets Management Staff (see
Drugs, Prescription drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 300 is amended as follows:
21 U.S.C. 331, 351, 352, 355, 360b, 360bbb-0a, 371.
(a) Definitions: The following definitions of terms apply only to this section:
(1)
(2)
(3)
(4)
(5)
(i) Meets the definition of “sponsor” in § 312.3 of this chapter for the eligible investigational drug;
(ii) Has submitted an application for the eligible investigational drug under section 505(b) of the Federal Food, Drug, and Cosmetic Act or section 351(a) of the Public Health Service Act; or
(iii) Is other than a contract manufacturer acting on behalf of a manufacturer or sponsor, producing the eligible investigational drug provided to an eligible patient on behalf of the persons described in paragraph (a)(5)(i) or (ii) of this section.
(b)(1) Except as described in paragraph (b)(2) of this section, a manufacturer or sponsor of an eligible investigational drug shall submit to the Food and Drug Administration (FDA), no later than March 31 of each year, an annual summary of any use of eligible investigational drugs supplied to any eligible patient under section 561B of the Federal Food, Drug, and Cosmetic Act for the period of January 1 through December 31 of the preceding year.
(2) For a manufacturer or sponsor of an eligible investigational drug that has supplied an eligible patient with an eligible investigational drug under section 561B of the Federal Food, Drug, and Cosmetic Act between the period from enactment of section 561B (May 30, 2018) and December 31, 2022, the manufacturer or sponsor shall submit to FDA a first annual summary covering that period no later than March 31, 2023.
(c) For each eligible investigational drug, the annual summary must include:
(1)
(2)
(3)
(4)
(5)
(d) Annual summaries submitted pursuant to this section shall be submitted in an electronic format that FDA can process, review, and archive, and shall be sent directly to a designated point of contact for submissions made under section 561B of the Federal Food, Drug, and Cosmetic Act. The annual summaries must be submitted to the designated point of contact and shall not be submitted to a particular investigational new drug application. FDA will specify the designated point of contact for submission of the annual summary on FDA's website, as described at
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is finalizing an update to a portion of the Outer Continental Shelf (OCS) Air Regulations. Requirements applying to OCS sources located within 25 miles of states' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (COA), as mandated by the Clean Air Act (CAA). The portion of the OCS air regulations that is being updated here pertains to the requirements for OCS sources for which the State of New York is the COA. The intended effect of updating the OCS requirements for the State of New York is to regulate emissions from OCS sources in accordance with the requirements onshore. The requirements discussed in this rule are being incorporated by reference into the OCS air regulations.
This final rule is effective on October 14, 2022. The incorporation by reference of a certain publication listed in this rule is approved by the Director of the Federal Register as of October 14, 2022.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2022-0400. All documents in the docket are available at
Viorica Petriman, Air Programs Branch, Permitting Section, U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007, (212) 637-4021,
On May 20, 2022 (87 FR 30849), EPA proposed to incorporate by reference into the OCS Air regulations at 40 CFR part 55
To comply with this statutory mandate, the EPA must incorporate by reference into part 55 all relevant State rules in effect for onshore sources, so they can be applied to OCS sources located offshore. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Inclusion in the OCS rules does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.
40 CFR 55.12 specifies certain times at which part 55's incorporation by reference of a State's rules must be updated. One time such a “consistency update” must occur is when any OCS source applicant submits a Notice of Intent (NOI) under 40 CFR 55.4 for a new or a modified OCS source. 40 CFR 55.4(a) requires that any OCS source applicant must submit to EPA a NOI before performing any physical change or change in method of operation that results in an increase in emissions. EPA must conduct any necessary consistency update when it receives a NOI, and prior to receiving any application for a preconstruction permit from the OCS source applicant. 40 CFR 55.6(b)(2) and 55.12(f).
On March 14, 2022, the EPA received a NOI from Empire Offshore Wind LLC to submit an OCS air permit application for the construction and operation of a new OCS source (a wind energy project) about 14 miles offshore New York.
The EPA reviewed the New York State Department of Environmental Conservation (“NYSDEC”) air rules currently in effect, to ensure that they are rationally related to the attainment or maintenance of Federal and State Ambient Air Quality Standards (AAQS) or part C of title I of the CAA, that they are not designed expressly to prevent exploration and development of the OCS, and that they are applicable to OCS sources.
The EPA did not receive any comments on the proposal to update a portion of the OCS Air Regulations to incorporate updated requirements into 40 CFR part 55 pertaining to the State of New York.
The EPA is taking final action to incorporate by reference relevant New York air pollution control rules into § 55.14 and to update the “New York” section of appendix A to 40 CFR part 55, which lists those rules. The EPA is approving this action under section 328(a) of the CAA, 42 U.S.C. 7627(a). Section 328(a) of the CAA requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference as described in sections I. and II. of this preamble. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of “State of New York Requirements Applicable to OCS Sources,” dated March 10, 2022, which provides the text of the NYSDEC air rules in effect as of March 10, 2022 that would apply to OCS sources. The EPA has made, and will continue to make, this material available through
Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, the EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by the EPA.
This action is not a “significant regulatory action” under the terms of Executive Orders (E.O.) 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011) and is therefore not subject to review under the E.O.
This action does not impose any new information collection burden under PRA because this action only updates the State rules that are incorporated by reference into 40 CFR part 55. OMB has previously approved the information collection activities contained in the existing regulations at 40 CFR part 55 and, by extension, this update to part 55, and has assigned OMB control number 2060-0249. This action does not impose a new information burden under PRA because this action only updates the state rules that are incorporated by reference into 40 CFR part 55.
I certify that this action does not have a significant impact on a substantial number of small entities under the RFA. This final rule does not impose any requirements or create impacts on small entities. This consistency update under CAA section 328 does not create any new requirements but simply updates the State requirements incorporated by reference into 40 CFR part 55 to match the current State requirements.
This action does not contain any unfunded mandate or significantly or uniquely affect small governments as described in UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any state, local or tribal governments.
This action does not have federalism implications. It does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 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, nor does it impose substantial direct costs on tribal governments, nor preempt tribal law. It merely updates the State requirements incorporated by reference into 40 CFR part 55 to match current State requirements.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 and simply updates the State requirements incorporated by reference into 40 CFR part 55 to match the current State requirements.
This final rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking 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 is inconsistent with the Clean Air Act.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it 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.
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 November 14, 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.
Environmental protection, Administrative practice and procedures, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer Continental Shelf, Ozone, Particulate matter, Permits, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons set out in the preamble, 40 CFR part 55, is amended as follows.
Section 328 of the Clean Air Act (42 U.S.C. 7401,
(e) * * *
(16) * * *
(i) * * *
(A) State of New York Requirements Applicable to OCS Sources, March 10, 2022.
(a) State requirements.
(1) The following State of New York requirements are applicable to OCS Sources, as of March 10, 2022. New York Environmental Conservation Law—Department of Environmental Conservation. The following sections of Title 6, Chapter III:
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is exempting residues of the antimicrobial pesticide ingredient hypochlorous acid from the requirement of a tolerance when used on or applied to food-contact surfaces in public eating places. The EPA is finalizing this rule on its own initiative under the Federal Food, Drug, and Cosmetic Act (FFDCA) to address residues identified as part of the EPA's registration review program under the Federal Insecticide,
This regulation is effective September 14, 2022. Objections and requests for hearings must be received on or before November 14, 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-2020-0244, is available at
Anita Pease, Antimicrobials Division 7510M, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 202-566-0737; email address:
You may be potentially affected by this action if you are a 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 numbers EPA-HQ-OPP-2020-0244 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 November 14, 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-2020-0244, 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
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of 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(c)(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(c)(2)(B) requires EPA to take into account, among other things, the considerations set forth in section 408(b)(2)(C) and (D). Specifically, 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), 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 support the establishment of exemptions from the requirement of a tolerance for residues of hypochlorous acid.
As noted in the “Hypochlorous Acid Interim Decision”, there are tolerance exemptions under 40 CFR 180.940(b) and (c), which state that solutions containing hypochlorous acid may be applied to dairy-processing equipment, and food-processing equipment and utensils, with the limitation that the end-use concentration of hypochlorous acid does not exceed 200 parts per
EPA's safety determination for establishing a hypochlorous acid tolerance exemption under section 40 CFR 180.940(a) is based on chemical similarity to sodium, calcium, and potassium hypochlorites. Hypochlorous acid risk conclusions, including those related to dietary and aggregate exposure, can be bridged to the risk conclusions from the reevaluation of the sodium, calcium, and potassium hypochlorites (see docket EPA-HQ-OPP-2012-0004 at
Based on the lack of any aggregate risks of concern, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to hypochlorous acid residues. Thus, EPA has determined that the exemption from the requirement of a tolerance for residues of hypochlorous acid is safe.
An analytical method for residue is not required for enforcement purposes since the EPA is not establishing a numerical tolerance for residues of hypochlorous acid in or on any food commodities. EPA is establishing limitations on the amount of hypochlorous acid that may be used in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
Therefore, EPA is establishing an exemption under 40 CFR 180.940(a) from the requirement of a tolerance for residues of hypochlorous acid when used in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils not to exceed 200 ppm determined as total available chlorine. Because the existing entries for hypochlorous acid in paragraphs (b) and (c) are duplicative of the new exemption in paragraph (a) of section 40 CFR 180.940, EPA is removing the tolerance exemptions for hypochlorous acid in paragraphs (b) and (c), as unnecessary.
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(e). 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 due to its lack of significance, 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). This action does not contain any information collection subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
In addition, the EPA has determined that this action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the executive order to include regulations 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.” This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes. This
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.
The addition reads as follows:
(a) * * *
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Rolls-Royce Deutschland Ltd & Co KG (RRD) BR700-710A1-10, BR700-710A2-20, and BR700-710C4-11 model turbofan engines. This proposed AD was prompted by reports of cracks on certain low-pressure compressor (LPC) rotor (fan) disks. This proposed AD would require initial and repetitive visual inspections of certain LPC rotor fan disks and, depending on the results of the inspections, replacement of any LPC rotor fan disk with cracks detected. This proposed AD would also allow modification of the engine in accordance with RRD service information as a terminating action to these inspections, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by October 31, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material that is proposed for IBR in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone +49 221 8999 000; email
• You may view this material 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.
Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7241; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0110, dated June 15, 2022 (EASA AD 2022-0110), to address an unsafe condition for certain RRD BR700-710A1-10, BR700-710A2-20, and BR700-710C4-11 model turbofan engines. The MCAI states that there have been reports of cracks on certain LPC rotor fan disks. The FAA is proposing this AD to prevent failure of the LPC rotor fan or blade. This condition, if not addressed, could result in high energy debris release, damage to the airplane, and reduced control of the airplane.
You may examine the MCAI in the AD docket at
This product has been approved by the aviation authority of another
The FAA reviewed EASA AD 2022-0110. EASA AD 2022-0110 specifies procedures for initial and repetitive visual inspections of certain LPC rotor fan disks, and replacement of any LPC rotor fan disk with cracks detected.
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 FAA reviewed RRD BR700 Series Propulsion System Service Bulletin (SB) SB-BR700-72-101474, Revision 1, dated November 18, 2014 (RRD BR700 Series Propulsion System SB SB-BR700-72-101474); RRD BR700 Series Propulsion System SB SB-BR700-72-101952, Initial Issue, dated December 1, 2016 (RRD BR700 Series Propulsion System SB SB-BR700-72-101952); and RRD BR700 Series Propulsion System SB SB-BR700-72-A900732, Initial Issue, dated June 7, 2022 (RRD BR700 Series Propulsion System SB SB-BR700-72-A900732).
RRD BR700 Series Propulsion System SB-BR700-72-101474 and RRD BR700 Series Propulsion System SB SB-BR700-72-101952 describe procedures for the modification of the engine as a terminating action to the initial and repetitive visual inspections of certain LPC rotor fan disks. RRD BR700 Series Propulsion System SB SB-BR700-72-A900732 specifies procedures for initial and repetitive visual inspections of certain LPC rotor fan disks.
This proposed AD would require accomplishing the actions specified in EASA AD 2022-0110, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between This Proposed AD and the EASA AD.”
Where EASA AD 2022-0110 requires compliance from its effective date, this proposed AD would require using the effective date of this AD.
This AD does not require compliance with the “Remarks” section of EASA AD 2022-0110.
The FAA estimates that this AD, if adopted as proposed, would affect 2,068 engines installed on airplanes of U.S. Registry.
The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by October 31, 2022.
None.
This AD applies to Rolls-Royce Deutschland Ltd & Co KG (RRD) BR700-710A1-10, BR700-710A2-20, and BR700-710C4-11 model turbofan engines as identified in European Union Aviation Safety Agency AD 2022-0110, dated June 15, 2022 (EASA AD 2022-0110).
Joint Aircraft Service Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by reports of cracks on certain low-pressure compressor (LPC) rotor (fan) disks. The FAA is issuing this AD to prevent failure of the LPC rotor fan or blade. The unsafe condition, if not addressed, could result in high energy debris release, damage to the airplane, and reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Perform all required actions within the compliance times specified in, and in accordance with, EASA AD 2022-0110.
(1) Where EASA AD 2022-0110 requires compliance from its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2022-0110 is not incorporated by reference in this AD.
Although the service information referenced in EASA AD 2022-0110 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in § 39.19. In accordance with § 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 (k)(2) of this AD or email to:
(1) For service information identified in EASA AD 2022-0110, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; phone: +44 (0)1332 242424; fax: +44 (0)1332 249936; website:
(2) For more information about this AD, contact Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7241; 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 the AD specifies otherwise.
(i) European Union Aviation Safety Agency AD 2022-0110, dated June 15, 2022.
(ii) [Reserved]
(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.
(4) 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.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2022-04-04, which applies to certain Continental Aerospace Technologies, Inc. (Continental) C-125, C145, IO-360, IO-470, IO-550, O-300, O-470, TSIO-360, and TSIO-520 series model reciprocating engines and certain Continental Motors IO-520 series model reciprocating engines with a certain oil filter adapter installed. AD 2022-04-04 requires replacing the oil filter adapter fiber gasket (fiber gasket) with an oil filter adapter copper gasket (copper gasket). Since the FAA issued AD 2022-04-04, the FAA determined that the reciprocating engines identified in the applicability of AD 2022-04-04 are incorrect. This proposed AD would require replacing the fiber gasket with the copper gasket or the stainless steel embedded within polytetrafluoroethylene gasket (stainless steel PTFE gasket). This proposed AD would also revise the applicability to add and remove certain reciprocating engine models, update the required actions to add an additional part-numbered stainless steel PTFE gasket as a replacement part, and revise the special flight permit paragraph to expand the limitations. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by October 31, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For Stratus Tool Technologies service information identified in this NPRM, contact Stratus Tool Technologies, LLC, 2208 Air Park Drive, Burlington, NC 27215; phone: (800) 822-3200; website:
• You may view this 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.
George Hanlin, Aviation Safety Engineer, Atlanta ACO, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: (404) 474-5584; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this proposed NPRM.
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to George Hanlin, Aviation Safety Engineer, Atlanta ACO, FAA, 1701 Columbia Avenue, College Park, GA 30337. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The FAA issued AD 2022-04-04, Amendment 39-21945 (87 FR 9435, February 22, 2022) (AD 2022-04-04), for certain Continental (Type Certificate previously held by Continental Motors, Inc., and Teledyne Continental Motors) C-125-1, C-125-2, C145-2, C145-2H, IO-360-C, IO-360-D, IO-360-DB, IO-360-H, IO-360-HB, IO-360-K, IO-360-KB, IO-470-E, IO-470-S, IO-550-B, IO-550-G, O-300-B, O-300-C, O-300-D, O-300-E, O-470-A, O-470-B, O-470-G, O-470-J, O-470-K, O-470-L, O-470-M, O-470-N, O-470-R, O-470-S, O-470-U, O-470-11, O-470-15, TSIO-360-E, TSIO-360-EB, TSIO-360-F, TSIO-360-FB, TSIO-360-GB, TSIO-360-LB, TSIO-360-MB, TSIO-360-SB, TSIO-520-C, TSIO-520-CE, TSIO-520-E, and TSIO-520-UB model reciprocating engines; and certain Continental Motors (Type Certificate previously held by Teledyne Continental Motors) IO-520-A, IO-520-B, IO-520-BA, IO-520-BB, IO-520-C, IO-520-D, IO-520-J, and IO-520-L model reciprocating engines. AD 2022-04-04 was prompted by reports of two accidents that were the result of power loss due to oil starvation. AD 2022-04-04 requires replacing the fiber gasket with a copper gasket. The agency issued AD 2022-04-04 to prevent loss of engine power.
Since the FAA issued AD 2022-04-04, the FAA determined that the reciprocating engines identified in the applicability of AD 2022-04-04 are incorrect. Certain model reciprocating engines were inadvertently included in the applicability paragraph of AD 2022-04-04; and certain other model reciprocating engines were inadvertently omitted in the applicability paragraph of AD 2022-04-04. Further, after the FAA issued AD 2022-04-04, the FAA approved an additional part-numbered stainless steel PTFE gasket, in addition to the copper gasket, which was previously approved as a replacement part. The FAA, therefore, is proposing to supersede AD 2022-04-04 to revise the applicability by adding and removing certain model reciprocating engines, to update the required actions by adding stainless steel PTFE gasket, part number ST07, as a replacement part, and to revise the special flight permit paragraph by expanding the limitations.
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
The FAA reviewed Stratus Tool Technologies Mandatory Service Bulletin SB-001 Rev B, dated June 17, 2021. This service information specifies procedures for removing a fiber gasket and replacing it with a copper gasket. The Director of the Federal Register previously approved the incorporation by reference of this service information as of March 29, 2022 (87 FR 9435, February 22, 2022). This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would retain certain requirements of AD 2022-04-04. This proposed AD would require replacing the fiber gasket with the copper gasket or the stainless steel PTFE gasket. This proposed AD would also revise the applicability to add and remove certain reciprocating engine models, update the required actions to add an additional part-numbered stainless steel PTFE gasket as a replacement part, and revise the special flight permit paragraph to expand the limitations.
The FAA estimates that this AD, if adopted as proposed, would affect 6,300
The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by October 31, 2022.
This AD replaces AD 2022-04-04, Amendment 39-21945 (87 FR 9435, February 22, 2022).
This AD applies to Continental Aerospace Technologies, Inc. C-125-1, C-125-2, C145-2, C145-2H, GO-300-A, GO-300-B, GO-300-C, GO-300-D, GO-300-E, GO-300-F, IO-360-C, IO-360-D, IO-360-DB, IO-360-H, IO-360-HB, IO-360-K, IO-360-KB, IO-470-C, IO-470-D, IO-470-H, IO-470-J, IO-470-K, IO-470-L, IO-470-M, IO-470-N, IO-470-S, IO-470-U, IO-470-V, IO-520-A, IO-520-D, IO-520-F, IO-520-J, IO-520-K, IO-520-L, IO-550-D, IO-550-E, IO-550-F, O-300-A, O-300-B, O-300-C, O-300-D, O-300-E, O-470-A, O-470-B, O-470-G, O-470-J, O-470-K, O-470-L, O-470-M, O-470-N, O-470-R, O-470-S, O-470-U, O-470-11, O-470-15, TSIO-360-E, TSIO-360-EB, TSIO-360-F, TSIO-360-FB, TSIO-360-GB, TSIO-360-LB, TSIO-360-MB, TSIO-360-SB, TSIO-470-C, TSIO-520-C, TSIO-520-G, and TSIO-520-H model reciprocating engines equipped with an F&M Enterprises, Inc. (F&M), or Stratus Tool Technologies, LLC (Stratus) oil filter adapter installed per Supplemental Type Certificate SE8409SW, SE09356SC, or SE10348SC.
Joint Aircraft System Component (JASC) Code 8550, Reciprocating Engine Oil System.
This AD was prompted by reports of two accidents that were the result of power loss due to oil starvation. The FAA is issuing this AD to prevent loss of engine power. The unsafe condition, if not addressed, could result in failure of the engine, in-flight shutdown, and loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Before accumulating 50 flight hours after the effective date of this AD or at the next scheduled oil change after the effective date of this AD, whichever occurs first, remove any F&M or Stratus oil filter adapter fiber gasket from service and replace it with an oil filter adapter copper gasket, part number (P/N) AN900-28, P/N AN900-29, or a stainless steel polytetrafluoroethylene gasket, P/N ST07, as applicable, in accordance with the Compliance Instructions, paragraph 6., pages 7 through 10 (including all detailed instructions for Figure 5 through Figure 16), of Stratus Tool Technologies Mandatory Service Bulletin SB-001 Rev B, dated June 17, 2021.
After the effective date of this AD, do not install an F&M or Stratus oil filter adapter fiber gasket onto any affected engine.
A special flight permit may be issued in accordance with 14 CFR 21.197 and 21.199 to permit a one-time non-revenue ferry flight to operate the airplane to the nearest location where the maintenance action can be performed provided that the engine oil pressure and engine oil temperatures are in their allowable ranges and there is no noticeable increase in engine noise. This flight must be performed with no passengers on board.
(1) The Manager, Atlanta ACO, 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 (k) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector,
(3) AMOCs approved for AD 2022-04-04 (87 FR 9435, February 22, 2022) are approved as AMOCs for the corresponding provisions of this AD.
For more information about this AD, contact George Hanlin, Aviation Safety Engineer, Atlanta ACO, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: (404) 474-5584; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on March 29, 2022 (87 FR 9435, February 22, 2022).
(i) Stratus Tool Technologies Mandatory Service Bulletin SB-001 Rev B, dated June 17, 2021.
(ii) [Reserved]
(4) For Stratus Tool Technologies, LLC, 2208 Air Park Drive, Burlington, NC 27215; phone: (800) 822-3200; website:
(5) You may view this 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.
(6) 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:
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The U.S. Consumer Product Safety Commission (Commission or CPSC) is proposing to amend the Standard for the Flammability of Clothing Textiles. The proposed revisions would clarify existing provisions, expand permissible equipment and materials, and update equipment requirements that are outdated. The Commission is providing an opportunity for interested parties to present written and oral comments on this notice of proposed rulemaking (NPR). Both written and oral comments will be part of the rulemaking record.
Submit comments, identified by Docket No. CPSC-2019-0008, by any of the following methods:
Paige Witzen, Project Manager, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20852; telephone (301) 987-2029; email:
Congress enacted the Flammable Fabrics Act (FFA; 15 U.S.C. 1191-1204) in 1953, to prohibit the importation, manufacture for sale, or the sale in commerce of any fabric or article of wearing apparel that is “so highly flammable as to be dangerous when worn by individuals.”
The purpose of the Standard is to reduce the risk of injury and death by providing a national standard for testing and rating the flammability of textiles and textile products used for clothing. 16 CFR 1610.1(a). The Standard includes test equipment, materials, and procedures for testing the flammability of clothing textiles. As a general
After testing, the burn time (
Section 1610.40 of the Standard permits the use of alternative apparatus, procedures, or criteria for tests for guaranty purposes. The FFA states that no person will be subject to prosecution for failing to comply with flammability requirements if that person has a guaranty, meeting specific requirements, that indicates that reasonable and representative tests confirmed compliance with flammability requirements issued under the statute. 15 U.S.C. 1197. For purposes of supporting guaranties, § 1610.40(c) of the Standard states that “reasonable and representative tests” could be either the flammability tests required in the Standard or “alternate tests which utilize apparatus or procedures other than those” in the Standard. The Standard specifies that for persons or firms issuing guaranties to use an alternative apparatus or procedure, the alternative must be “as stringent as, or more stringent than” the test in the Standard, which the Commission will consider met “if, when testing identical specimens, the alternative test yields failing results as often as, or more often than,” the test in the Standard.
Section 1610.40 sets out conditions for using this allowance. A person or firm using the allowance “must have data or information to demonstrate that the alternative test is as stringent as, or more stringent than,” the test in the Standard, and retain that information while using the alternative and for one year after. 16 CFR 1610.40(d)(1), (2), (3), and (f). Section 1610.40 specifies that the Commission will test fabrics in accordance with the Standard and will consider any failing results evidence of non-compliance and a false guaranty.
In 2019, the Commission published a Request for Information (RFI), seeking information about the equipment and procedures in the Standard and possible ways to update those provisions to reduce testing burdens, improve clarity, and reflect current industry practices and technologies. 85 FR 16797 (Apr. 23, 2019). The RFI requested information about the clarity of the test result codes, availability and clarity of the stop thread specification, restrictions on the dry cleaning solvent, and availability of machines meeting the laundering specifications in the Standard.
The Standard applies to all items of clothing and fabrics intended to be used for clothing (
Between January 1, 2016, and December 31, 2020 (the most recent year for which data are available), there were an average of 81 deaths annually in the United States that involved ignition of clothing. An average of 2.2 of these fatalities involved ignition or melting of nightwear, and an average of 78.2 of these fatalities involved ignition or melting of other clothing. Between 2000 and 2020, the number of clothing fire deaths declined, overall. In addition, using CPSC's National Electronic Injury Surveillance System (NEISS),
The FFA specifies the requirements for the Commission to issue or amend a flammability standard. The Commission may initiate rulemaking by issuing an advance notice of proposed rulemaking (ANPR) or an NPR. 15 U.S.C. 1193(g). The Commission is initiating this rulemaking with an NPR. The FFA requires that an NPR include the text of the proposed rule, any alternatives the Commission proposes, and a preliminary regulatory analysis.
• a preliminary description of the potential benefits and costs of the proposed rule, including benefits and costs that cannot be quantified, and who is likely to receive the benefits and bear the costs;
• a discussion of the reasons the Commission did not publish any standard or portion of a standard submitted in response to an ANPR as the proposed rule or part of it;
• a discussion of the reasons for the Commission's preliminary
• a description of reasonable alternatives to the proposed rule, a summary of their potential costs and benefits, and a brief explanation of the reasons the Commission did not choose the alternatives.
To issue a final rule, the Commission must publish a final regulatory analysis and make certain findings.
• is needed to adequately protect the public from unreasonable risk of the occurrence of fire leading to death, injury, or significant property damage;
• is reasonable, technologically practicable, and appropriate;
• is limited to fabrics, related materials, or products that present such unreasonable risks; and
• is stated in objective terms.
• if a voluntary standard addressing the risk of injury has been adopted and implemented, that either compliance with the voluntary standard is not likely to result in the elimination or adequate reduction of the risk or injury, or it is unlikely that there will be substantial compliance with the voluntary standard;
• that the benefits expected from the rule bear a reasonable relationship to its costs; and
• that the rule imposes the least burdensome requirement that prevents or adequately reduces the risk of injury.
When issuing an NPR under the FFA, the Commission also must comply with section 553 of the Administrative Procedure Act (APA; 5 U.S.C. 551-559), which requires the Commission to provide notice of a rule and the opportunity for interested parties to submit written data, views, or arguments on it. 5 U.S.C. 553(c); 15 U.S.C. 1193(d). In addition, the FFA requires the Commission to provide interested parties with an opportunity to make oral presentations of data, views, or arguments.
As described above, the burn time and burn behavior of tested specimens are used to determine the classification of a textile, and classifications determine whether the fabric may be used for clothing. Section 1610.8 of the Standard lists test result codes (
For plain surface textile fabrics, classification is based primarily on burn times. The Standard provides three possible burn codes for plain surface textile fabrics:
• DNI (did not ignite);
• IBE (ignited, but extinguished); and
• _._sec. (indicating the burn time).
Fabrics that yield DNI or IBE burn codes have no recordable burn time and are considered Class 1 fabrics. Plain surface textile fabrics with a burn time of 3.5 seconds or more are Class 1; those with a burn time of less than 3.5 seconds are Class 3; and there is no Class 2 option for plain surface fabrics.
For raised surface textile fabrics, classification is based on burn time and the intensity of the surface burning. Burn behaviors for raised surface textile fabrics fall into two general categories of intensity—surface flashes and base burns—and each category has specific burn codes associated with it. As described above, raised surface textile fabrics consist of a base and intentionally raised surface fibers. Burn behavior that involves only surface fibers is called surface flash, whereas, burn behavior that burns through the base is called a base burn, which involves the base fabric igniting or fusing. Both burn time and burn behavior are relevant to classification of these fabrics because a rapid surface flash that quickly breaks the stop thread but does not burn through the base of the fabric is not considered dangerously flammable; it is the combination of burning rapidly and through the base that results in a dangerously flammable fabric.
The Standard provides eight possible burn codes for raised surface textile fabrics:
• SF uc (surface flash under the stop thread);
• SF pw (surface flash part way, meaning it did not reach the stop thread);
• SF poi (surface flash at the point of impingement only);
• _._sec. (indicating the burn time);
• _._SF only (surface flash with a burn time);
• _._SFBB (surface flash with a base burn starting somewhere other than the point of impingement);
• _._SFBB poi (surface flash with base burn starting at the point of impingement); and
• _._SFBB poi* (surface flash with base burn where the base burn possibly started at the point of impingement, but testing was unable to make an absolute determination of the origin of the base burn).
Burn codes SF uc, SF pw, SF poi, and _._SF only apply when there is a surface flash and no base burn. Burn codes SFBB, SFBB poi, and SFBB poi* apply when the surface fiber and the base of the fabric are involved in the burning behavior (
Raised surface textile fabrics are Class 1 if they either have a burn time greater than 7.0 seconds or they have a burn time of 0-7 seconds with no base burns (
The Commission proposes to update the burn code provisions in the Standard for raised surface textile fabrics to consolidate redundant codes, eliminate unnecessary and unclear codes, and to improve clarity. In response to the RFI, the Commission received several comments indicating that burn code information for raised surface textile fabrics is unclear. Because the burn codes help determine whether a fabric is permissible for use in clothing, a lack of clarity in these provisions could lead to misclassifications, which could impact consumer safety.
First, the Commission proposes several revisions to Table 1 to § 1610.4 to clarify the existing criteria for classifications of raised surface textile fabrics. In this table, the Commission proposes to replace the wording “with no base burns (SFBB)” in the Class 1 description with “with no SFBB burn code.” As the Class 1 description for raised surface fabrics in this table indicates, a fabric falls in this class only if it either has a longer burn time (more than 7 seconds) or if it exhibits rapid surface flash only, and no base burns. As explained above, there are three burn codes that indicate that a base burn occurred—SFBB, SFBB poi, and SFBB poi*. SFBB applies when the base burn occurs as a result of the surface flash, rather than from the point of impingement of the burner, whereas SFBB poi and SFBB poi* only have a base burn due to the flame that impinges on the fabric, not from the intensity of the surface of the fabric itself burning. As such, only fabrics with burn code SFBB, and not SFBB poi and SFBB poi*, are excluded from being Class 1. The proposed revision would retain this criterion, while clarifying the specific burn code—SFBB—being referenced.
Similarly, the Commission proposes to add a note to Table 1 to § 1610.4, stating that burn codes SFBB poi and SFBB poi* are not considered a base burn for purposes of determining Class 2 and 3 fabrics. Class 2 and 3 descriptions for raised surface textile fabrics in this table specify that fabrics in these classes exhibit base burns (SFBB). Like above, only fabrics with a burn code of SFBB, and not SFBB poi and SFBB poi*, have a base burn that occurs as a result of the surface flash rather than from the point of impingement of the burner. Although the table already references burn code SFBB for the Class 2 and 3 descriptions, the added note will make clear that SFBB refers only to that specific code, and not the other two base burn codes.
The Commission also proposes to add the classification names—Normal Flammability, Intermediate Flammability, and Rapid and Intense Burning—to the descriptions of raised surface textile classifications in the table. This addition is both for clarity and to highlight that, although both Class 1 and 2 fabrics are permissible for use in clothing, Class 2 fabrics are more flammable, which indicates that caution should be taken when using them.
Second, consistent with the clarification above in § 1610.4, the Commission proposes to revise the definition of “base burn” in § 1610.2(a) to clarify that base burns are used to establish Class 2 and 3 (not just Class 3) and to reference burn code SFBB for clarity.
Third, and also consistent with the changes above, the Commission proposes to revise the description of Class 2 for raised surface textile fabrics in § 1610.4(b)(2) to add the clarification that “base fabric starts burning at places other than the point of impingement as a result of the surface flash (test results code SFBB).”
Fourth, the Commission proposes to amend the provisions on raised surface textile fabrics in § 1610.7(b)(3) and (4), which describes classification criteria in detail. The Commission proposes to add “(SFBB)” anywhere that the words “base burn” appear to make clear what burn code is being referenced, consistent with the revision in Table 1 to § 1610.4.
Fifth, the Commission proposes to revise § 1610.8, which lists the burn codes and requirements relevant to them, to streamline the codes by consolidating similar codes and removing unnecessary and confusing codes. The Commission proposes to combine burn codes SF uc, SF pw, and SF poi into a single new burn code, SF ntr (no time recorded, does not break stop thread). The three existing codes all describe burning behavior that does not have enough intensity to break the stop thread and, accordingly, have no burn time and all result in a fabric being Class 1. Because the purpose of burn codes is to determine the classification of fabrics, it is unnecessary to have all three of these codes; instead, a single code, indicating that there was no burn time recorded, is sufficient and clearer.
Similarly, the Commission proposes to remove from the list of raised surface textile fabric burn codes in § 1610.8, the code that lists only a burn time (_._sec.). Because burn time, alone, generally does not determine the classification of raised surface textile fabrics, this code does not help identify the appropriate classification, is confusing, and may result in misclassification.
Finally, the Commission proposes to amend the times provided in the Standard so they all include one decimal place. Currently, some references to time use one decimal place (
None of these proposed changes would alter the testing requirements, classification criteria, or classification results under the Standard. Rather, they clarify existing requirements and consolidate codes to streamline the provisions. The Commission requests comments on each of these proposed revisions and, in particular, on whether they improve clarity, as intended.
As discussed above, the test apparatus required for flammability testing includes, as part of the necessary components, stop thread, which is used to determine burn time. Section 1610.2(p) includes a definition of “stop thread,” and § 1610.5(a)(2)(ii) specifies the test apparatus and materials that must be used for flammability testing, both of which state that the stop thread must be “No. 50, white, mercerized, 100% cotton sewing thread.”
CPSC has a supply of the required thread for testing. It is a 3-ply cotton thread. However, “No. 50” is not currently a common or clear method of describing thread. Lack of clarity or availability regarding the stop thread in the Standard potentially introduces variability in test results, depending on the thread testing laboratories use. This is problematic because the stop thread is used to determine burn time, which is used to determine the classification of a fabric and whether it is acceptable for use in clothing. The Standard needs to provide clear reference to a thread that is currently available on the market so that testing laboratories can acquire the necessary thread and use it to obtain consistent test results and classifications.
To identify a stop thread description that is available on the market and comparable to the current thread specified in the Standard, CPSC staff assessed the thread supply they currently use to test under the Standard, assessed an alternative thread that is marketed as complying with the Standard, considered threads required in other clothing flammability standards, and conducted testing of several threads. Currently, the industry (including internationally) commonly uses the Tex system to define thread size. “Tex” is defined as the weight, in grams, of 1,000 meters of yarn and is determined by measuring and weighing cotton threads and calculating linear density. Because of the wide recognition and use of the Tex system, staff considered the Tex size of the various stop threads assessed. For a detailed explanation of how CPSC staff determined the Tex sizes of these threads, see the briefing package staff prepared following the RFI.
Staff determined that the current thread supply CPSC uses to test under the Standard has a Tex size of 36. CPSC staff also assessed a commercially available thread (Item Code 1502002, CFR1610, #50 mercerized cotton thread, lot 12308) that is marketed as complying with the Standard. Although CPSC does not use this thread, some commercial laboratories and manufacturers use this thread when testing to the Standard. Staff determined that this thread has a Tex size of 44. Staff also considered the stop thread required in the Canadian General Standards Board's standard, CAN/CGSB-4.2 No. 27.5,
Staff conducted a thread comparison study to determine whether differences in threads, such as fiber type and size (linear density), had a significant effect on burn times and flammability classifications under the Standard, and to identify the range of Tex sizes that yield flammability results comparable to the current Standard. Because the purpose of updating the stop thread specification is to improve clarity about the thread required and ensure there is such a thread available on the market, and not to alter the results under the Standard, staff aimed to identify Tex sizes that would yield flammability results comparable to those using the thread currently specified in the Standard. This section provides information about the comparison study and results.
Staff tested five threads with varying Tex sizes, as indicated in Table 1.
Threads A, B, and E were cotton, and Threads C and D were polyester and had more divergent Tex sizes than the cotton threads. Staff used two plain surface cotton fabrics for testing—cotton organdy (Fabric 1) and cotton batiste (Fabric 2)—each with a fabric weight of 2.06 oz/yd
Figures 1 and 2 provide the results of staff's testing.
As these figures show, the burn times for all of the thread options for each fabric were very similar. As explained above, for plain surface textile fabrics, classification depends on whether the burn time is 3.5 seconds or more, or shorter than that. For both fabrics, and all threads, the burn times were well above this 3.5-second threshold, indicating that all of the results were Class 1 and that any of the alternative threads would yield classifications consistent with the current Standard. In addition, because the burn times were all well above the 3.5-second threshold, slight variations in burn times across thread options would not alter the classifications. Moreover, there was little variation in the burn times of the different threads, with the median burn time for all threads being within 0.4 seconds for Fabric 1 and 0.3 seconds for Fabric 2. For comparison, the variability in burn times from specimen to specimen within the same fabric and thread type was wider, at about 1.0 second of variation between the slowest and fastest burn times. These results show that any of these alternative threads and Tex sizes would not result in changes in a fabric's classification when compared to the current Standard.
Based on staff's assessments and testing, the Commission proposes to amend the stop thread description in the Standard from “No. 50, white, mercerized, 100% cotton sewing thread,” to state that it must consist of a spool of “3-ply, white, mercerized, 100% cotton sewing thread, with a Tex size of 35 to 45 Tex.” This amendment would remove the reference to “No. 50” since the meaning of this is no longer clear, and it would add to the description that the thread is “3-ply” because this is consistent with thread that complies with the current Standard. This would also maintain the requirement that the thread be “white, mercerized, 100% cotton sewing thread,” as this maintains consistency with the current Standard and does not require clarification or updates due to product availability. In addition, it is preferable to continue to require cotton for the stop thread because some polyester threads are designed to be flame resistant, making cotton thread more appropriate for flammability testing.
The Commission proposes to add to the description that the range of permissible Tex sizes is 35 to 45. Staff's test results indicate that a stop thread description that allows a range of acceptable Tex sizes would yield flammability results that are consistent across that range and in line with the results obtained using the stop thread in the current Standard. Because of the wide recognition and use of the Tex system, specifying a Tex size for the stop thread in the Standard would allow testing laboratories to purchase compliant thread and obtain repeatable and reliable test results. Allowing a range of Tex sizes, instead of specifying a specific Tex size, would give testing laboratories greater flexibility in identifying and obtaining stop threads that comply with the Standard, while retaining consistent burn times and flammability classifications.
The proposed range reflects the array of Tex sizes for the three cotton threads that yielded burn times that were consistent with the current Standard (Thread A with Tex size 36, Thread B with Tex size 44, and Thread E with Tex size 37). As such, the proposed revision would allow testing laboratories to use the thread CPSC currently uses (Thread A) and the thread currently marketed as complying with the Standard (Thread B), and it would also allow the use of thread that complies with the Canadian standard, which specifies a Tex size of 35. Although Threads C and D also yielded comparable burn times, these two threads were polyester, which is potentially problematic because some polyester threads are designed to be flame resistant, and they had much higher and lower Tex sizes (87 and 24, respectively). Therefore, the Commission is not proposing to include
The Commission seeks comments on these proposed revisions and the justifications for them. In particular, the Commission seeks comments on the use of Tex sizes; whether a range of Tex sizes is appropriate, rather than a specific size; whether the range should be limited to those of cotton thread or include the Tex sizes of polyester or other thread; and the range of sizes that should be permissible and why.
The Standard requires that flammability testing be performed on samples in their original state and again after refurbishing. 16 CFR 1610.3, 1610.6. The Standard defines “refurbishing” as “dry cleaning and laundering in accordance with § 1610.6.”
The Standard defines “dry cleaning” as “the cleaning of samples in a commercial dry cleaning machine under the conditions described in § 1610.6.”
In recent years, there have been increasing restrictions on the use of perchloroethylene in dry cleaning. In 2007, California adopted regulations that took incremental steps to phase out the use of perchloroethylene in the dry cleaning industry over time, and require that, by January 1, 2023, existing facilities remove all perchloroethylene dry cleaning machines from service.
The Standard defines “laundering” as “washing with an aqueous detergent solution and includes rinsing, extraction and tumble drying as described in § 1610.6.” 16 CFR 1610.2(i). Section 1610.6 specifies that, for laundering, a sample be washed and dried one time in accordance with sections 8.2.2, 8.2.3, and 8.3.1(A) of AATCC Test Method 124-2006,
For washing, the Standard requires the use of specific washing procedures (by referencing sections 8.2.2 and 8.2.3 of TM 124-2006); the use of washing machines that meet criteria for wash temperature (by referencing Table II, provision (IV) in TM 124-2006) and water level, agitator speed, washing time, spin speed, and final spin cycle (by referencing Table III, provisions for “Normal/Cotton Sturdy” in TM 124-2006); and maximum wash loads and contents. For drying, the Standard requires the test method described in TM 124-2006 for Tumble Dry (section 8.3.1(A)), with the use of machines that meet specified exhaust temperatures and cool down temperatures (by referencing Table IV, provisions for “Durable Press” in TM 124-2006).
Washing machines have changed substantially over the past 15 years to reduce water use and improve energy efficiency. One key element of washing machines that has evolved is agitation speed. Currently, the Standard requires the use of a washing machine with an agitation speed of 179 ± 2 strokes per minute (spm) (by referencing Table III, provisions for “Normal/Cotton Sturdy” in TM 124-2006). However, washing machines available on the market are no longer able to meet this requirement because they have reduced agitation speeds. Although CPSC still has washing machines that meet the required agitation speed, when these machines reach the end of their useful lives, CPSC will not be able to replace them with machines that comply with the Standard. Likewise, CPSC expects that many washing machines that testing laboratories use to test for conformance with the Standard have reached, or soon will reach, the end of their useful lives, at which point, the labs will be unable to obtain the machines necessary to test to the Standard. As such, the Standard needs to be updated to include washing machine specifications that can be met by machines that are available on the market, and yield consistent, reliable, and accurate test results and classifications.
Unlike washing machines, there has been little change in the design of dryers in recent years, and dryers that meet the requirements in the Standard are still available on the market. Nevertheless, the Commission proposes to update the specifications for dryers in the Standard to align with the necessary updates for washing machines, for the reasons discussed below.
Staff considered several options to update the dry cleaning and laundering specifications in the Standard and conducted comparison testing to determine whether these options would yield flammability results comparable to the current Standard. Staff sought to identify options that would not alter the flammability results of fabrics because the Standard has a long history and has been effective at addressing clothing flammability. As such, staff aimed to
This section provides information about the comparison study and results; for additional information, see Tabs D and E of staff's briefing package supporting this NPR.
Staff considered several dry cleaning solvents as alternatives to perchloroethylene. Staff considered hydrocarbon solvent because it is becoming the most commonly used alternative to perchloroethylene in the dry cleaning industry; it has a long history of use; it is low in cost; and it is more widely available than many other alternatives. Staff also considered silicone and butylal solvents because they are also widely available. Staff did not consider carbon dioxide dry cleaning because it is more expensive than other options and is not widely available. Staff also did not consider professional wet cleaning because it would not accomplish the purpose of the dry cleaning requirement in the Standard. The purpose of the refurbishing requirements in the Standard is to remove finishes that may affect the flammability of a fabric, and both dry cleaning and laundering are necessary for that purpose. Because fabrics are already exposed to water-based cleaning under the separate laundering requirements in the Standard, water-soluble finishes would be removed by that process, and professional wet cleaning would not provide additional finishing removal. As such, a non-water-based dry cleaning method, like the one currently in the Standard, is appropriate. Based on these assessments, staff tested three potential dry cleaning solvent options—hydrocarbon, silicone, and butylal—as part of the comparison study.
In selecting an alternative dry cleaning solvent for the Standard, it is not sufficient to change the solvent alone; the parameters surrounding the dry cleaning procedure need to be adjusted, as well, because of the nature of different solvent systems, dry cleaning processes, and equipment requirements. As such, in assessing alternative procedures, staff selected an appropriate detergent class, cleaning time, extraction time, cooling time, drying time, and drying temperature, for each alternative solvent, based on typical procedures used for that solvent system. For all of the options, samples were dry cleaned in a commercial dry cleaning machine at 80 percent of the machine's capacity.
Staff also considered several options as alternatives to the laundering specifications in TM 124-2006. Because agitation speed is the primary element of the current specification that can no longer be met by machines on the market, one alternative staff considered was requiring the continued use of the laundering procedures in TM 124-2006, but allowing a lower agitation speed.
To assess this lower agitation speed option, CPSC purchased a washing machine designed for testing laboratories that offers preprogrammed wash cycles or allows the user to program cycle parameters, subject to the machine's physical specification limits. All of the machine's programmable cycle parameters can meet the specifications in the Standard, except for the agitation speed. The maximum programmable agitation speed for the washing machine is 120 spm, lower than the 179 ± 2 spm required in the Standard. This option is referred to as “reduced agitation speed” in this notice because it has a reduced agitation speed, as compared to the Standard (although the agitation speed is higher than the second option, discussed below).
A second option staff considered to update the washing machine specifications was to follow the parameters in AATCC's Laboratory Procedure 1,
LP1-2021 includes a lower agitation speed than the current Standard, but it also includes other differences in the washing and drying parameters. For this alternative, staff conducted comparison testing using washing machine parameters that conform to the provisions in:
• section 9.2 of LP1-2021, which includes a lower wash load size of 1.8 ± 0.1 kg (4.0 ± 0.2 pounds), compared to the current Standard;
• section 9.4 of LP1-2021, which requires the same detergent as the current Standard; and
• “(1) Normal” and “(IV) Hot” in Table 1,
Staff used the drying parameters that conform to the provisions in:
• section 12.2(A) of LP1-2021, which are the same as those in the current Standard; and
• “(Aiii) Permanent Press” in Table VI,
Based on these assessments, staff tested two potential laundering options as part of the comparison study. The first option was the reduced agitation speed for laundering (
To identify options that would yield flammability results comparable to the Standard, staff developed a comparison testing study that assessed the three alternative dry cleaning solvent options and the two alternative laundering options discussed above, in comparison to the dry cleaning and laundering provisions in the Standard.
Staff selected 11 fabrics for testing, including six plain surface textile fabrics and five raised surface textile fabrics. Staff included both plain and raised surface textile fabrics in the study because the Standard provides different criteria for classifying these fabric types. Staff chose samples that are representative of fabrics that typically require flammability testing
Staff purchased at least 14 yards of each fabric, with widths between 40 and 60 inches, and they cut these into four 2-yard sections and one 6-yard section. One of the 2-yard sections of each fabric was tested in its original state, without refurbishing, in accordance with the Standard.
To examine the dry cleaning options, each of the three 2-yard sections for each fabric was dry cleaned using one of the three dry cleaning procedures under consideration (
To examine the laundering options, the 6-yard section of each fabric was dry cleaned in perchloroethylene, in accordance with the Standard, and then cut into three 2-yard sections, each of which underwent one of the three laundering procedures under consideration (
After these refurbishing procedures, staff cut each 2-yard section (including the 6 refurbished sections and 1 section in its original state) into thirty 2-by-6-inch specimens and performed flammability testing on those specimens, in accordance with the Standard. In total, this resulted in staff testing 2,310 specimens (11 fabrics × 7 sections of each fabric × 30 specimens of each sample).
Overall, the results of the comparison study indicate that all of the alternative dry cleaning specifications and laundering specifications yield flammability results comparable to the Standard. Key results for the dry cleaning and laundering alternatives are provided in this section.
In understanding these results, it is important to note that, under the Standard, multiple specimens of a fabric must be tested, and burn codes and classifications are based on the results of these multiple specimens. The Standard specifies how to determine appropriate burn codes and classifications in light of these multiple specimens. Typically, fabric classification is determined by testing at least five specimens of a fabric. Thus, the results of a single specimen of fabric are not necessarily indicative of the final classification of the fabric. For example, if the results of a single specimen meet the criteria for Class 2 (
The comparison study results for the three alternative dry cleaning specifications and the dry cleaning specifications in the Standard are presented below. Table 5 provides the aggregated results for all plain surface textile fabrics. Table 6 provides the results for the individual plain surface textile fabrics and includes the number of samples tested that resulted in burn times,
As Table 5 shows, for plain surface textile fabrics, all three of the alternative dry cleaning options yielded very similar burn times to the Standard, including the mean, minimum, and maximum burn times. Table 6 shows the same is true for each plain surface textile fabric tested, with very similar mean, minimum, and maximum burn times for each alternative and the dry cleaning specification in the Standard.
For plain surface textile fabrics, burn time alone determines a fabric's classification, and a burn time of 3.5 seconds or more is Class 1, while a burn time of less than 3.5 seconds is Class 3. As Tables 5 and 6 show, for both the aggregated results and the individual fabric results, the Standard and all three alternative dry cleaning procedures yielded mean, minimum, and maximum burn times above the 3.5 second threshold and, therefore, yielded the same classification—Class 1—for all of the fabrics. Moreover, the mean, minimum, and maximum burn times were all sufficiently above the 3.5-second threshold that, even with some variability in burn times, the alternatives would not alter the classifications of these fabrics, when compared to the classifications under the Standard.
Table 7 provides the aggregated results for all raised surface textile fabrics, and Table 8 provides the results for the individual raised surface textile fabrics.
As Table 7 shows, for raised surface textile fabrics, all three of the alternative dry cleaning options yielded burn times very similar to the Standard, including the mean, minimum, and maximum burn times. Table 8 shows the same is true for each raised surface textile fabric tested, with similar mean, minimum, and maximum burn times for each alternative and the dry cleaning specification in the Standard. Tables 7 and 8 also illustrate the wide variability in burn times for raised surface textile fabrics, even when testing the same fabric with the same dry cleaning procedure. This variation is expected, particularly for raised surface textile fabrics, both within results for a single fabric and across different fabric types.
For raised surface textile fabrics, classifications are generally based on both burn time and burn behavior, as indicated by burn codes.
As the results in Table 7 show, using the mean burn times, all of the alternative dry cleaning procedures yielded the same Class 1 results as the Standard. These mean results were also sufficiently above the 7.0-second threshold that, even with some
The results for Fabric G, in Table 8, show that the mean, minimum, and maximum burn times for this fabric were all above the 7.0-second threshold and, therefore, Class 1, using any of the three alternatives or the Standard. Even with some variability in burn times, the burn times were sufficiently above the 7.0-second threshold that this would not alter the classifications. In addition, staff found that all of the specimens tested under the three alternatives and the Standard yielded burn codes of SFBB poi. The same is true of the burn time and burn code results for Fabric H, in Table 8. This demonstrates that the classifications for Fabrics G and H would be the same under any of the three alternative dry cleaning procedures as they are under the Standard, making them all comparable alternatives.
The results for Fabric I illustrate that the mean and range of burn times for the three alternative dry cleaning procedures are similar to that of the Standard, but that all four methods have some variability clustered close to the burn time thresholds for different classifications. This makes burn codes relevant for purposes of determining classifications. Staff found that all 30 specimens of Fabric I tested using the Standard, silicone, and butylal had burn codes of SFBB poi, and that hydrocarbon yielded burn codes of SFBB (8 specimens), SFBB poi (17 specimens), and SFBB poi* (5 specimens). As such, Fabric I was Class 1 under the Standard, silicone, and butylal, but 8 of the specimens could potentially yield Class 2 or 3 results under the hydrocarbon option, depending on the burn time and the results of additional specimens. Although the hydrocarbon alternative could potentially result in different classifications than the Standard, these divergent results were limited to a small proportion of the hydrocarbon results, and most hydrocarbon results aligned with the classifications under the Standard.
The results for Fabric J also illustrate that the mean and range of burn times for the three alternative dry cleaning procedures are similar to that of the Standard. However, because the mean, minimum, and maximum are all well below the 7.0-second threshold for which classification can be determined solely by burn times, burn codes are relevant for determining the classifications of these specimens.
Staff found that, under the dry cleaning procedure in the Standard, 27 of the specimens of Fabric J had a burn code of SFBB poi (making them Class 1) and 3 had a burn code of SFBB (potentially making them Class 2 or 3, depending on burn time and results of other specimens). The hydrocarbon alternative yielded 22 specimens with a burn code of SFBB poi (making them Class 1) and 8 with burn code of SFBB (potentially making them Class 2 or 3, depending on burn time and results of other specimens). In total, 11 specimens tested under the hydrocarbon alternative yielded different burn codes than the Standard and 19 specimens yielded the same burn codes under both methods. The silicone alternative yielded 24 specimens with a burn code of SFBB poi and 1 with a burn code of SFBB poi* (making them Class 1), along with 5 with burn code of SFBB (potentially making them Class 2 or 3, depending on burn time and results of other specimens). In total, 9 specimens tested under the silicone alternative yielded different burn codes than the Standard and 21 specimens yielded the same burn codes under both methods. The butylal alternative yielded 16 specimens with a burn code of SFBB poi (making them Class 1), and 14 with a burn code of SFBB (potentially making them Class 2 or 3, depending on burn time and results of other specimens). In total, 17 specimens tested under butylal alternative yielded different burn codes than the Standard and 13 specimens yielded the same burn codes under both methods.
This indicates that, for Fabric J, all three alternative dry cleaning options could result in different classifications than the Standard. However, it also indicates that, overall, a small proportion of the classifications under hydrocarbon and silicone have the potential to yield different classifications than the Standard, and most hydrocarbon and silicone results aligned with the classifications in the Standard. In addition, the number of hydrocarbon and silicone results that diverged from the Standard were similar, whereas divergent classifications were far more common for butylal.
The results for Fabric K illustrate that the mean and range of burn times for the three alternative dry cleaning procedures are similar to that of the Standard, but that all four methods have some variability clustered close to the burn time thresholds for different classifications. Staff found that all 30 specimens of Fabric K tested using the Standard, hydrocarbon, silicone, and butylal had burn codes of SFBB poi, making them all Class 1 under every option. This demonstrates that the classifications for Fabric K would be the same under any of the three alternative dry cleaning procedures as they are under the Standard, making them all comparable alternatives.
The comparison study results for the two alternative laundering specifications and the laundering specifications in the Standard are presented below. Table 9 provides the aggregated results for all plain surface textile fabrics. Table 10 provides the results for the individual plain surface textile fabrics and includes the number of samples tested that resulted in burn times,
As Table 9 shows, for plain surface textile fabrics, both of the alternative laundering options yielded very similar burn times to the Standard, including the mean, minimum, and maximum burn times. Table 10 shows the same is true for each plain surface textile fabric tested, with very similar mean, minimum, and maximum burn times for each alternative and the laundering specification in the Standard. As Tables 9 and 10 show, for both the aggregated results and the individual fabric results, the Standard and both alternative laundering procedures yielded mean, minimum, and maximum burn times above the 3.5-second threshold for plain surface textile fabrics and, therefore, yielded the same classification—Class 1—for all of the fabrics. Moreover, the mean, minimum, and maximum burn times were all sufficiently above the 3.5-second threshold that, even with some variability in burn times, the alternatives would not alter the classifications of these fabrics, when compared to the classifications under the Standard.
Table 11 provides the aggregated results for all raised surface textile fabrics, and Table 12 provides the results for the individual raised surface textile fabrics.
As Table 11 shows, for raised surface textile fabrics, the alternative laundering options yielded very similar burn times to the Standard, including the mean, minimum, and maximum burn times. Table 12 shows that, for each raised surface textile fabric tested, there were also similar mean, minimum, and maximum burn times for each alternative and the laundering specification in the Standard. Tables 11 and 12 also illustrate the wide variability in burn times for raised surface textile fabrics, even when testing the same fabric with the same laundering procedure. As explained above, this variation is expected, particularly for raised surface textile fabrics, both within results for a single fabric and across different fabric types.
As the results in Table 11 show, both of the alternative laundering procedures yielded the same Class 1 results as the Standard since they all had mean burn times above 7.0 seconds. These mean results were also sufficiently above the 7.0 second threshold that, even with some variability in burn times, the alternatives would not alter the classifications when compared to the classifications under the Standard. The wide range of minimum and maximum burn times in Table 11 is the result of variations in different raised surface textile fabrics, which behaved similarly for the laundering alternatives and the dry cleaning alternatives. The results of individual fabrics are discussed below.
The results for Fabric G, in Table 12, show that the mean, minimum, and maximum burn times for this fabric were all well above the 7.0-second threshold and, therefore, Class 1 using either of the alternatives or the Standard. Even with some variability in burn times, the burn times were sufficiently above the 7.0-second threshold that this would not alter the classifications. In addition, all of the specimens tested under both alternatives and the Standard yielded burn codes of SFBB poi. The same is true of the burn time and burn code results for Fabric H, in Table 12. This demonstrates that the classifications for Fabrics G and H would be the same under either of the alternative laundering procedures as they are under the Standard, making them both comparable alternatives.
The results for Fabric I illustrate that the mean and range of burn times for the two alternative laundering procedures are similar to that of the Standard, but that all three methods have some variability clustered close to the burn time thresholds for different classifications. This makes burn codes relevant for purposes of determining classifications. Staff found that all 30 specimens of Fabric I tested using the Standard and both laundering alternatives had burn codes of SFBB poi, making all of them Class 1, regardless of burn time. This demonstrates that the classification for Fabric I would be the same under either of the alternative laundering procedures as they are under the Standard, making them both comparable alternatives.
The results for Fabric J also illustrate that the mean and range of burn times for the two alternative laundering procedures are very similar to that of the Standard. Because the mean, minimum, and maximum are all well below the 7.0-second threshold for which classification can be determined solely by burn times, burn codes are relevant for determining the classifications of these specimens. Staff found that, under the laundering procedure in the Standard, 27 specimens of Fabric J had a burn code of SFBB poi (making them Class 1) and 3 had a burn code of SFBB (potentially making them Class 3 depending on the results of other specimens because all burn times were less than 4.0 seconds). The reduced agitation speed alternative yielded 24 specimens with a burn code of SFBB poi (making them Class 1) and 6 with a burn code of SFBB (potentially making them Class 3 depending on the results of other specimens because all burn times
This indicates that although both alternative laundering options could result in different classifications than the Standard, only a very small proportion of the results indicate this, and most results align with the classifications in the Standard. In addition, the number of reduced agitation speed and LP1-2021 burn code results that diverged from the Standard were nearly identical, indicating they provide similar equivalency to the Standard. Also, there were fewer classifications that differed when comparing LP1-2021 results and those under the Standard than when comparing the reduced agitation speed option to the Standard.
The results for Fabric K show that the mean, minimum, and maximum burn times for this fabric were all above the 7.0-second threshold and, therefore, Class 1 using either of the laundering alternatives or the Standard. However, because some of the burn times were close to this threshold, staff also considered their burn behavior. Staff found that all 30 specimens of Fabric K tested using the Standard, the reduced agitation speed alternative, and the LP1-2021 alternative had burn codes of SFBB poi. As such, even if burn times had been below the 7.0-second threshold, they would all still be Class 1 under every option. This demonstrates that the classifications for Fabric K would be the same under either of the alternative laundering procedures as they are under the Standard, making them all comparable alternatives.
Based on staff's assessment and testing, the Commission proposes to amend the dry cleaning solvent requirements in the Standard to include, as an alternative to commercial grade perchloroethylene, commercial grade hydrocarbon solvent. Specifically, the Commission proposes to specify that the following conditions are permissible:
• hydrocarbon solvent,
• cationic detergent class,
• 20-25 minutes cleaning time,
• 4 minutes extraction time,
• 60-66 °C (140-150 °F) drying temperature,
• 20-25 minutes drying time, and
• 5 minutes cool down/deodorization time.
The Commission is not proposing to remove the perchloroethylene option from the Standard because this procedure is still available and widely used. However, because of the increasing restrictions on the use of perchloroethylene, the Commission proposes to also allow hydrocarbon as an alternative dry cleaning method. This would allow testing laboratories to continue to use perchloroethylene where it is available and permissible but accommodate testing laboratories that can no longer access or use this method.
As the comparison testing indicates, all three alternative dry cleaning procedures that staff tested would provide comparable and acceptable alternatives to the dry cleaning procedures in the Standard. Overall, fabrics yielded the same classifications under the hydrocarbon alternative as they did under the Standard. Although a small portion of the raised surface textile fabrics showed the potential to result in different classifications using hydrocarbon solvent, compared to the Standard, this was true for all three alternatives considered, and less so for hydrocarbon and silicone than for butylal; this only applied to a small portion of the fabrics and hydrocarbon results; variability in results was evident even in the results under the current Standard; and variability in flammability results is expected across specimens of the same fabric using the same procedure, particularly for raised surface fabrics. As such, in general, hydrocarbon solvent yields comparable flammability results to the Standard and is among the best options available to provide the needed alternative to perchloroethylene for testing laboratories that can no longer use that solvent. In addition, the Commission proposes to allow the use of hydrocarbon solvent, rather than silicone or butylal, because it is the most commonly used alternative to perchloroethylene, has a long history of use, and is less expensive than other alternatives. Also, several companies manufacture hydrocarbon solvents for dry cleaning, whereas silicone and butylal are newer technologies and patented, making their availability more limited.
However, CPSC also considered several variations on this proposal, including whether perchloroethylene should remain an option, and whether some other alternative or combination of alternatives including hydrocarbon, silicone, and butylal, should be permissible. The Commission requests comments on the proposed revision, including the solvent and associated parameters, the comparison testing, and the justifications for the proposed requirement. The Commission also requests comments on the alternatives considered and the justifications for them.
• washing conform to the provisions in section 9.2 and 9.4, and the provisions for “(1) Normal” and “(IV) Hot” in Table 1,
• drying conform to the provisions in section 12.2(A), and the provisions for “(Aiii) Permanent Press” in Table VI,
These specifications are those staff used during comparison testing and are shown in Table 3, above.
In addition, for purposes of 16 CFR 1610.40, the Commission preliminarily concludes that the testing CPSC staff conducted that is provided in this notice and in full detail in Tabs D and E of the briefing package supporting this proposed rule
• in compliance with sections 8.2.2, 8.2.3 and 8.3.1(A) of TM 124-2006,
• using AATCC 1993 Standard Reference Detergent, powder,
• with wash water temperature (IV) (120° ± 5 °F; 49° ± 3 °C) specified in Table II of TM 124-2006,
• using water level, agitation speed, washing time, spin speed and final spin cycle for “Normal/Cotton Sturdy” in Table III of TM 124-2006, and
• with a maximum wash load of 8 pounds (3.63 kg) and consisting of any combination of test samples and dummy pieces—
Likewise, for purposes of 16 CFR 1610.40, the Commission preliminarily concludes that the testing CPSC staff conducted that is provided in this notice and in full detail in Tabs D and E of the briefing package supporting this proposed rule
• in compliance with section 8.3.1(A), Tumble Dry, of TM 124-2006,
• using the exhaust temperature (150° ± 10 °F; 66° ± 5 °C) specified in Table IV, “Durable Press,” of TM 124-2006, and
• with a cool down time of 10 minutes specified in Table IV, “Durable Press,” of TM 124-2006—
As discussed above, section 1610.40 allows the use of alternative apparatus, procedures, or criteria for tests for guaranty purposes when reasonable and representative tests that use apparatus or procedures other than those in the Standard confirm compliance with the Standard, under specified conditions. This allowance specifies that an alternative must be as stringent as, or more stringent than the Standard, and that the Commission considers an alternative to meet this requirement “if, when testing identical specimens, the alternative test yields failing results as often as, or more often than, the test” in the Standard. Anyone using an alternative under this allowance must have data or information demonstrating this required stringency and retain it while the alternative is used to support a guaranty and for one year after. See 16 CFR part 1610 for full details regarding this allowance.
If the Commission finalizes this proposed rule and requires the use of laundering specifications in LP1-2021, then testing laboratories that want to continue to use laundering specifications that meet the specifications of TM 124-2006 that are referenced in the current Standard could use the results of staff's comparison testing to demonstrate that the laundering specification in TM 124-2006 that is referenced in the current Standard is as stringent as or more stringent than the specifications in LP1-2021 referenced in the proposed amendment. The following summarizes how staff's comparison testing demonstrates that the laundering specification in TM 124-2006 yields failing results as often as, or more often than the laundering specification in LP 1-2021, when testing identical specimens.
As discussed above, the aggregated results for both plain and raised surface textile fabrics (Tables 9 and 11) show that the mean burn times and classifications are comparable when specimens are laundered in accordance with the relevant specifications in TM 124-2006 or LP1-2021. More specifically, all of the individual plain surface textile fabrics yielded the same classifications—Class 1—whether tested in accordance with the relevant laundering procedures in TM 124-2006 or LP1-2021 and had sufficiently high burn times to consistently yield the same classifications, even if there was slight variability in burn times (Table 10). This demonstrates that, for plain surface textile fabrics, the relevant specifications in TM 124-2006 are as stringent as LP1-2021 since they yield failing results as often as LP1-2021.
Similarly, of the raised surface textile fabrics, Fabrics G, H, I, and K yielded the same classifications—Class 1—whether tested in accordance with the relevant laundering specifications in TM 124-2006 or LP1-2021 and had sufficiently high burn times and identical burn codes to consistently yield the same classifications, even if there was slight variability in burn times (Table 12). Only Fabric J had some deviations in burn codes, but even with these deviations, the classifications were the same. Specifically, although 6 of the 30 specimens of Fabric J tested under the laundering specification in LP1-2021 yielded different burn codes than those specimens tested under TM 124-2006, both laundering procedures still resulted in 27 of the 30 specimens tested under them having burn codes and burn times that would yield Class 1 results and three specimens with burn codes and burn times that could yield Class 3 results depending on the results of other specimens. Because flammability results are based on the final classification, and not just burn codes, this demonstrates that, for raised surface textile fabrics, the relevant laundering specifications in TM 124-2006 are as stringent as those in LP1-2021 since they yield failing results as often as LP1-2021.
Based on this information, the Commission preliminarily concludes that this NPR and the information provided in Tabs D and E of the briefing package supporting this proposed rule
Finally, as the comparison study results show, both the reduced agitation speed and LP1-2021 alternatives yield nearly identical classifications as the Standard, with only one raised surface textile fabric—Fabric J—having slightly different results when comparing the Standard and the alternatives. However, even for that fabric, the Standard and LP1-2021 yielded the same number of Class 1 results (27 specimens), while the reduced agitation speed alternative yielded 26 Class 1 results. As such, overall, fabrics yielded the same classifications under the LP1-2021 alternative as they did under the Standard and LP1-2021 is among the best options available to provide the needed alternative to TM 124-2006 since testing laboratories can no longer obtain washing machines that comply with that standard.
In addition to updating the washing machine specifications stated in section 1610.6(b)(1)(ii), the Commission proposes to update the drying specifications in that section to also incorporate by reference LP1-2021, for consistency and simplicity. Although clothes dryers have not changed significantly in recent years and machines that comply with TM 124-2006 are still available on the market, the Commission proposes to update this requirement for several reasons. For one, it is preferable for testing to follow the procedures and specifications in one standard for the entire laundering process, rather than using components of different standards for washing and drying, to ensure consistent and compatible testing. In addition, using two separate standards for washing and drying could lead to confusion or errors in testing, which could affect flammability results. Also, obtaining and maintaining two separate standards potentially would be cumbersome and slightly more costly for testing laboratories. Because many testing laboratories likely already have and are familiar with LP1-2021 to test for compliance with other standards, requiring the use of only this standard would be simpler, clearer, and less costly.
Finally, the dryer specifications in TM 124-2006 and LP1-2021 are nearly identical, which means the proposed update is unlikely to require testing laboratories to replace dryers that comply with the current Standard. As explained above, the Standard currently requires that drying be performed in accordance with section 8.3.1(A) of TM 124-2006 using the exhaust temperature and cool down time specified in “Durable Press” of Table IV of that standard. The Commission proposes to require that drying be performed in accordance with section 12.2(A) of LP1-2021 using the exhaust temperature and cool down time specified in “(Aiii) Permanent Press” of Table VI of that standard. These requirements are nearly identical—the comparison is discussed below.
Section 8.3.1(A) of TM 124-2006 and section 12.2(A) of LP1-2021 include essentially identical requirements that simply require tumble drying and immediate removal of samples. Similarly, reference to “Permanent Press” instead of “Durable Press” does not alter any requirements because the two terms have the same meaning—permanent press is simply the term more commonly used by industry currently.
As for exhaust temperature, in TM 124-2006, “Durable Press” of Table IV specifies that the dryer exhaust temperature is 66 ± 5 °C, whereas, in LP1-2021, (Aiii) “Permanent Press” of Table VI specifies that the maximum dryer exhaust temperature is 68 ± 6°C. As such, the range of exhaust temperatures is nearly identical in both standards, with TM 124-2006 allowing a range of 61-71 °C and LP1-2021 allowing a range of 62-74 °C. Thus, by updating the Standard to require the use of LP1-2021, only dryers with an exhaust temperature of precisely 61 °C would no longer be permissible, and dryers with exhaust temperatures of 72-74 °C would become permissible. Because most dryers are designed to target the mid-range of permissible temperatures, staff does not expect many dryers to fall outside the range that is permissible under both standards. To the extent that a dryer
Similarly, with respect to cool down time, TM 124-2006, “Durable Press” of Table IV specifies that the cool down time is 10 minutes, whereas in LP1-2021, (Aiii) “Permanent Press” of Table VI specifies that the cool down time is 10 minutes or less. As such, by updating the Standard to require the use of LP1-2021, there is a wider allowance for cool down time, including that specified in TM 124-2006.
Based on the very minor differences between the dryer specifications in TM 124-2006 and LP1-2021, staff expects that this proposed update would not require testing laboratories to replace any dryers because all machines that comply with TM 124-2006 are likely to also comply with LP1-2021, and the allowance in 16 CFR 1610.40 is available for the small number of machines that may become non-compliant.
The washing and drying specifications in TM 124-2018 are the same as those the Commission proposes to incorporate by reference from LP1-2021, but the Commission is not proposing to incorporate by reference TM 124-2018 for several reasons. For one, unlike LP1-2021 and the relevant provisions in the Standard, TM 124 is not just a laundering procedure—it is primarily intended to evaluate the smoothness appearance of fabrics after laundering and, accordingly, has procedures addressing that purpose. In contrast, the Standard is intended only for flammability assessments, and LP1-2021 is intended to be a stand-alone laundering protocol that can be used for flammability testing. In addition, because AATCC has referenced laundering specifications in several different ways over multiple revisions to TM 124, referencing TM 124 is a less reliable way of incorporating by reference these laundering requirements. In contrast, LP1-2021 is not expected to significantly change the laundering procedures the Commission proposes to incorporate by reference.
Another alternative the Commission considered is allowing both the continued use of the laundering specifications in the Standard (
Similarly, the Commission considered amending the Standard to include the specifications in LP1-2021, while allowing for the continued use of TM 124-2006 for a limited phase-out period. The Commission is not proposing this option because it would create the same problems as allowing continued use of TM 124-2006 indefinitely, and staff does not have information about an appropriate phase-out period for machines that comply with TM 124-2006. Although these machines have not been available on the market for many years, some testing laboratories have maintained existing machines, and it is difficult to determine when all such machines will be out of use.
In addition, the Commission considered only updating the washing machine specifications in the Standard, and not the dryer specifications, since only the washing machine specifications can no longer be met my machines available on the market. However, the Commission is proposing to also update the dryer specifications for the reasons discussed above.
CPSC staff reviewed and assessed several voluntary and international standards that are relevant to clothing flammability:
• TM 124;
• LP1-2021;
• ASTM D1230-22,
• Canadian General Standards Board Standard CAN/CGSB-4.2 No. 27.5,
As explained above, TM 124-2006 is currently incorporated by reference into the Standard as part of the laundering requirements, but washing machines that meet this specification are no longer available on the market. The current version, TM 124-2018, includes washing and drying specifications that are the same as LP1-2021. However, TM 124 is not a flammability standard; rather, it is intended to evaluate the smoothness appearance of fabrics after repeated home laundering. As such, it contains provisions that are not relevant to flammability testing and lacks provisions that are necessary for flammability testing.
Similarly, the Commission is proposing to incorporate by reference portions of LP1-2021, but this standard also does not include full flammability testing and classification requirements because it is intended as a stand-alone
The Commission is proposing to amend a rule under the FFA, which requires that an NPR include a preliminary regulatory analysis. 15 U.S.C. 1193(i). The following discussion is extracted from staff's preliminary regulatory analysis, available in Tab F of the NPR briefing package.
The preliminary regulatory analysis must include a description of the potential benefits and costs of the proposed rule, including unquantifiable benefits and costs.
The primary benefit of the proposed amendments is a reduction of burdens for testing laboratories by clarifying existing requirements and updating the specifications for stop thread, dry cleaning, and laundering to include options that are identifiable, permissible for use, and currently available on the market. In addition, the proposed amendments should improve consumer safety. The proposed amendments provide comparable flammability results to the current Standard but would improve testing laboratories' abilities to conduct testing and obtain consistent and reliable results. This should improve consumer safety by ensuring that textiles intended for use in clothing are properly tested and classified so that dangerously flammable textiles are not used in clothing. Staff is unable to quantify these potential benefits because of the difficulty of measuring the extent of testing laboratories' burden reduction and possible improvements to consumer safety. However, staff estimates that these benefits are likely to be small.
Although staff does not expect the proposed amendments to the washing specifications to impose any costs, staff examined potential costs associated with obtaining machines that comply with the proposed amendments to assess the costs to firms that choose to do so, rather than continue to use existing machines in accordance with the allowance in 16 CFR 1610.40. One potential cost to firms that choose to obtain new machines would be the cost of buying a copy of LP1-2021, which is approximately $50 for AATCC members and $70 for non-members. Staff does not consider this a significant cost and firms will not incur this cost if they already have LP1-2021 to comply with other standards.
The primary cost to firms that choose to obtain new machines would be the cost of new washing machines that comply with LP1-2021. Staff estimates that these machines cost an average of $4,300 (excluding tax but including certified calibration, packaging, and shipping). However, this cost would be offset by the reduced costs of no longer needing to repair or maintain existing, outdated machines. Staff estimates that the cost of maintaining and repairing the outdated machines is $300 annually and assumes that if a laboratory chooses to upgrade machines, it expects to receive benefits from the upgrade that outweigh the acquisition costs.
Staff was unable to determine the number of testing laboratories that test to the Standard and that would, therefore, by subject to the proposed amendments. At a minimum, staff notes that there currently are more than 300 testing laboratories that are CPSC-accepted third party laboratories that test to the Standard for purposes of children's product certifications. However, that is an underestimate of the number of firms impacted by the proposed rule because testing laboratories need not be CPSC-accepted third party laboratories to test to the Standard for non-children's products. At a maximum, staff notes that there are a total of 7,389 testing laboratories in the United States, according to the Census Bureau. However, this is an overestimate of the number of firms in the United States impacted by the proposed rule because this number includes testing laboratories that do not test to the Standard. Staff estimates that each testing laboratory that tests to the Standard has three washing machines that do not meet LP1-2021.
The proposed amendments regarding the drying specification are unlikely to require different dryers than those that currently comply with the Standard, since most dryers can comply with both specifications. However, to the extent that dryers that meet the current Standard would not meet the proposed amendments, firms would again have the option to continue to use their existing compliant dryers in accordance with 16 CFR 1610.40. Therefore, this alternative would eliminate any potential costs associated with the proposed amendments. Moreover, because most dryers comply with both the current Standard and LP1-2021, staff does not expect that most firms would need to replace their dryers even if they chose to comply with LP1-2021, instead of using 16 CFR 1610.40 to continue to comply with TM 124-2006.
When the Commission issues an ANPR under the FFA, it must invite interested parties to submit existing standards or provide a statement of intention to modify or develop a standard that would address the hazard at issue. 15 U.S.C. 1193(g). When CPSC receives such standards or statements in response to an ANPR, the preliminary regulatory analysis must provide reasons that the proposed rule does not include such standards.
A preliminary regulatory analysis must describe reasonable alternatives to the proposed rule, their potential costs and benefits, and a brief explanation of the reasons the alternatives were not chosen. 15 U.S.C. 1193(i). CPSC considered several alternatives to the proposed rule. These alternatives, their potential costs and benefits, and the reasons the Commission did not select them, are described in detail in section VI. Alternatives to the Proposed Rule, below, and Tab F of the NPR briefing package.
Another alternative is to allow a wider range of Tex sizes, such as the full range staff assessed during flammability testing and found to yield comparable flammability results to the Standard.
CPSC also considered requiring the use of only the hydrocarbon specification, rather than continuing to allow the use of the perchloroethylene specification in the current Standard. However, this alternative may increase costs by requiring all testing laboratories to change their dry cleaning specifications. CPSC did not select this option because, although perchloroethylene is being restricted in some locations, it is still available and widely used in the dry cleaning industry.
CPSC also considered amending the Standard to allow the use of LP1-2021 specifications or TM 124-2006 specifications. Similarly, CPSC considered amending the Standard to include the specifications in LP1-2021, while allowing for the continued use of TM 124-2006 for a limited phase-out period. These alternatives would have minimal, if any, costs because they would allow testing laboratories to continue to use existing machines, while providing an option to obtain machines that are available on the market. CPSC did not select these options because this would leave CPSC unable to test for compliance in accordance with one of the procedures in the Standard when CPSC's TM 124-2006-compliance machines reach the end of their useful lives; this would retain in the Standard an outdated and obsolete specification that is no longer possible to meet with products available on the market; and staff does not have information about an appropriate phase-out period for machines that comply with TM 124-2006.
Although the CPSC did not select either of these alternatives, firms would still be able to continue to use TM 124-2006-compliant machines, instead of LP1-2021-compliant machines, under the provisions in 16 CFR 1610.40. The Commission is facilitating this option by providing, in this notice and the briefing package supporting it, the documentation necessary to support that alternative.
For dryers, CPSC considered retaining the current provisions in the Standard, which reference TM 124-2006, since dryers that meet this standard are still available on the market. This alternative would eliminate any costs associated with the proposed amendment to dryer specifications. CPSC did not select this option because requiring the use of a single standard ensures compatible washing and drying requirements and reduces confusion and costs associated with obtaining and following two separate standards. In addition, because the dryer specifications in TM 124-2006 and LP1-2021 are nearly identical, testing laboratories are unlikely to need to replace their dryers to meet the proposed amendments and, for those that do, the allowance in 16 CFR 1610.40 would mitigate or eliminate that need.
This proposed rule does not involve any new information collection requirements, subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Standard does contain recordkeeping provisions, but this proposed rule would not alter the estimated burden hours to establish or maintain associated records from the information collection approved previously.
When an agency is required to publish a proposed rule, section 603 of the Regulatory Flexibility Act (5 U.S.C. 601-612) requires that the agency prepare an initial regulatory flexibility analysis (IRFA), containing specific content, that describes the impact that the proposed rule would have on small businesses and other entities. 5 U.S.C. 603(a). However, an IRFA is not required if the head of the agency certifies that the proposed rule “will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 603, 605(b). The agency must publish the certification in the
The Commission certifies that the proposed amendments, if adopted, will not have a significant economic impact on a substantial number of small entities. This is because there are little to no estimated costs associated with the rule since the proposed amendments reduce burdens on industry, maintain or expand existing requirements, or firms may rely on the allowance in 16 CFR 1610.40 to continue to use equipment that is being updated in the proposed amendments. The factual basis for the certification for this proposed rule is available in Tab F of the NPR briefing package; this section provides an overview.
The proposed rule would amend requirements for testing laboratories that test for compliance with the Standard. According to the small business size standards set by the Small Business Administration, testing laboratories are considered small if their average annual receipts are less than $16.5 million per year. Staff estimates that 70 percent of testing laboratories would be considered small.
Staff identified a possible minimum and maximum number of testing laboratories that would be subject to the proposed rule, but notes that the upper and lower bounds of these estimates are unlikely to represent the number of impacted firms. As explained above, at a minimum, there currently are more than 300 testing laboratories that are CPSC-accepted third party laboratories that test to the Standard for purposes of children's product certifications. However, this is an underestimate of the number of firms impacted by the proposed rule because this number only includes testing laboratories that test to the Standard for children's products. Using this minimum estimate and the assumption that 70 percent are small firms, there are a minimum of 210 CPSC-accepted third party laboratories that qualify as small businesses. To identify a possible maximum, staff determined that there are a total of 7,389 testing laboratories in the United States, according to the Census Bureau. However, this is an overestimate of the number of firms impacted by the proposed rule because this number includes testing laboratories that do not test to the Standard. Using this maximum estimate and the assumption that 70 percent are small firms, there are a maximum of 5,172 small testing laboratories could theoretically be impacted by the proposed rule.
In considering whether certification is justified, staff established criteria for what constitutes a “significant economic impact” and a “substantial number.” Staff determined that a reasonable threshold for a “significant economic impact” is costs in excess of 1 percent of the small firm's gross annual revenue, and a “substantial number” is 20 percent or more of small domestic firms.
The estimated economic impacts of the proposed rule are the same for small entities as for all firms and are discussed in section V. Preliminary Regulatory Analysis of this notice.
Staff does not anticipate any significant costs associated with the proposed amendments regarding burn codes because these amendments would merely clarify existing requirements. Staff does not anticipate any significant costs associated with the proposed amendments regarding stop thread or dry cleaning specifications because these amendments would continue to allow the use thread and dry cleaning under the current Standard. Staff also does not anticipate any significant costs associated with the proposed amendments regarding drying specifications because most dryers comply with both the current drying specifications and the proposed amendments, and any machines that do not comply with the amendments could be addressed through the allowance in 16 CFR 1610.40.
As discussed in the preliminary regulatory analysis, staff also does not expect significant costs associated with the proposed amendments regarding washing specifications because firms could continue to use existing machines under the allowance in 16 CFR 1610.40. In addition, any economic impact of these amendments on small firms would be offset by reducing the repair and maintenance costs to these firms to continue to use outdated machines required in the current Standard. Therefore, because there is no expected cost associated with the proposed rule, the economic impact is expected to be lower than the thresholds for “significant economic impact” and “substantial number.”
However, even if small firms choose to obtain new laundering machines, rather than continue to use existing machines under the allowance in 16 CFR 1610.40, staff expects these incremental costs to be well below 1 percent of the annual revenue of a small firm. Among domestic CPSC-accepted testing laboratories that are considered small and for which data was available, the average gross annual revenue was $2,930,192. As such, a cost would only be a “significant economic impact” if it totaled more than $29,301 (
Assumptions and uncertainties regarding the number of small entities affected by the proposed rule are discussed above. Assumptions and uncertainties regarding staff's assessment of the impact of the proposed rule on small entities are described in section V. Preliminary Regulatory Analysis of this notice.
The Commission requests comments on the certification, the factual basis for it, the threshold economic analysis, and the underlying assumptions and uncertainties.
The proposed rule incorporates by reference LP1-2021. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, in the preamble of the NPR, an agency must summarize the incorporated material, and discuss the ways in which the material is reasonably available to interested parties or how the agency worked to make the materials reasonably available. 1 CFR 51.5(a). In accordance with the OFR requirements, this preamble summarizes the provisions of LP1-2021 that the
The standard is reasonably available to interested parties and interested parties can purchase a copy of LP1-2021 from the American Association of Textile Chemists and Colorists, P.O. Box 12215, Research Triangle Park, North Carolina 27709; telephone (919) 549-8141;
Because the Standard applies to clothing and textiles intended to be used for clothing, it applies to both non-children's products and children's products. Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089) includes requirements for testing and certifying that non-children's products and children's products comply with applicable mandatory standards issued under any statute the Commission administers, including the FFA. 15 U.S.C. 2063(a). The Commission's regulations on certificates of compliance are codified at 16 CFR part 1110.
Section 14(a)(1) addresses required testing and certifications for non-children's products and requires every manufacturer of a non-children's product, which includes the importer,
Sections 14(a)(2) and (a)(3) address testing and certification requirements specific to children's products. A “children's product” is a consumer product that is “designed or intended primarily for children 12 years of age or younger.” 15 U.S.C. 2052(a)(2). The CPSA and CPSC's regulations provide factors to consider when determining whether a product is a children's product. 15 U.S.C. 2052(a)(2); 16 CFR 1200.2. An accredited third party conformity assessment body (third-party lab) must test any product that is subject to a children's product safety rule
The Commission must publish a notice of requirements (NOR) for third-party labs to obtain accreditation to assess conformity with a children's product safety rule.
The proposed rule does not require third-party labs to change the way they test products for compliance with the Standard. The proposed amendments to burn codes do not alter test protocols; they merely clarity existing requirements. The proposed amendments regarding stop thread and dry cleaning specifications continue to allow the use of the specifications that comply with the current Standard. Although the proposed amendments regarding laundering specifications differ from the current Standard, 16 CFR 1610.40 provides an allowance for the continued use of laundering specifications under the current Standard. Accordingly, if the Commission issues a final rule, the existing accreditations that the Commission has accepted for testing to the Standard would cover testing to the revised Standard, and CPSC-accepted third party conformity assessment bodies would be expected to update the scope of their accreditations to reflect the revised Standard in the normal course of renewing their accreditations. Accordingly, the Commission does not propose to revise the NOR for testing to the Standard.
The Commission seeks comments on this assessment and implications of the proposed rule on testing and certifications.
The Commission's regulations address whether CPSC is required to prepare an environmental assessment (EA) or an environmental impact statement (EIS). 16 CFR 1021.5. Those regulations list CPSC actions that “normally have little or no potential for affecting the human environment,” and, therefore, fall within a “categorical exclusion” under the National Environmental Policy Act (42 U.S.C. 4231-4370h) and the regulations implementing it (40 CFR parts 1500 through 1508) and do not require an EA or EIS. 16 CFR 1021.5(c). Among those actions are rules that provide design or performance requirements for products, or revisions to such rules.
Executive Order (E.O.) 12988,
The proposed revision to the Standard for the Flammability of Clothing Textiles falls under the authority of the FFA. Section 16 of the FFA provides that “whenever a flammability standard or other regulation for a fabric, related material, or product is in effect under this Act, no State or political subdivision of a State may establish or continue in effect a flammability standard or other regulation for such fabric, related material or product if the standard or other regulation is designed to protect against the same risk of occurrence of fire with respect to which
Section 4(b) of the FFA specifies that an amendment to a flammability standard shall take effect 12 months after the date the amendment is promulgated unless the Commission finds, for good cause shown, that an earlier or later effective date is in the public interest and publishes the reasons for that finding. 15 U.S.C. 1193(b).
The Commission proposes that the amendments to the Standard take effect 6 months after publication of the final rule in the
Section 4(b) of the FFA also requires that an amendment of a flammability standard exempt fabrics, related materials, and products “in inventory or with the trade” on the date the amendment becomes effective, unless the Commission prescribes, limits, or withdraws that exemption because it finds that the product is “so highly flammable as to be dangerous when used by consumers for the purpose for which it is intended.” Because the proposed amendments are intended to have minimal impacts, the Commission proposes that products “in inventory or with the trade” on the date the amendment becomes effective be exempt from the amended Standard.
As discussed in section II. Statutory Provisions, above, the FFA requires the Commission to make certain findings when it issues or amends a flammability standard. 15 U.S.C. 1193(b), (j)(2). This section discusses preliminary support for those findings.
The Commission requests comments on all aspects of the proposed rule. Comments should be submitted in accordance with the instructions in the
• Burn Codes:
○ The proposed amendments to the test result code provisions, whether they improve clarity, and whether additional revisions are necessary;
• Stop Thread:
○ The proposed revisions to the stop thread specification and whether additional revisions are necessary and why;
○ The equivalency of the proposed revisions and information and data supporting such comments;
○ The use of Tex size as part of the stop thread specification, as well as the appropriate size and range and justifications for them;
○ Alternatives to the proposed revisions, along with information and data supporting them;
• Comparison Testing:
○ The comparison testing supporting this NPR, including the fabrics selected, test methods, results, and conclusions regarding comparability to the Standard;
• Dry Cleaning Specifications:
○ The proposed revisions to the dry cleaning specifications;
○ The equivalency of the proposed revisions and information and data supporting such comments;
○ Whether perchloroethylene should be retained as an option in the Standard;
○ Whether hydrocarbon solvent should be the alternative provided, or whether other options should be provided instead of or in addition to hydrocarbon and, if so, information, data, and justifications for doing so;
• Washing Specifications:
○ The proposed revisions to the washing specifications;
○ The equivalency of the proposed revisions and information and data supporting such comments;
○ Whether TM 124-2006 should be retained as an option in the Standard and, if so, for how long and the justifications for doing so;
○ Additional alternatives, including reduced agitation speed and TM 124-2018, and other appropriate alternatives, along with information, data, and justifications for such alternatives;
○ The allowance in 16 CFR 1610.40 and its utility for the continued use of washing specifications required in the current Standard;
• Drying Specifications:
○ The proposed revisions to the drying specifications;
○ The equivalency of the proposed revisions and information and data supporting such comments;
○ Whether TM 124-2006 should be retained as an option in the Standard and, if so, for how long and the justifications for doing so;
○ Additional alternatives, including TM 124-2018 or the use of different standards for washing and drying, and other appropriate alternatives, along with information, data, and justifications for such alternatives;
○ The allowance in 16 CFR 1610.40 and its utility for the continued use of drying specifications required in the current Standard;
• Effective Date:
○ The reasonableness of the proposed effective date, and recommendations and justifications for a different effective date;
○ The reasonableness of the proposed effective date for the amendments regarding burn codes and stop thread, and whether another effective date would be in the public interest, and why;
○ The reasonableness of the proposed effective date for the amendments regarding dry cleaning, and whether a shorter effective date would be in the public interest, particularly given the prohibition on the use of perchloroethylene in certain locations, beginning in 2023;
○ The reasonableness of the proposed effective date for the amendments regarding laundering, including whether labs will need to obtain new machines and the time needed to obtain and test with new machines;
• Economic Analyses:
○ The accuracy of the estimated benefits associated with the proposed rule, and whether additional benefits should be considered, particularly for testing laboratories that are affected by restrictions on dry cleaning and the market availability of laundering equipment;
○ The accuracy of the estimated costs associated with the proposed rule, and whether additional costs should be considered, particularly for testing laboratories that maintain, use, or need new laundering equipment to test to the Standard;
○ Information and data regarding the benefits and costs associated with the proposed rule;
○ The number of firms that would be impacted by the proposed rule and the extent to which they would be impacted;
○ The number of small entities that would be impacted by the proposed rule and the benefits and costs to them; and
○ The alternatives to the proposed rule and the benefits and costs associated with them.
Consistent with the FFA requirement to provide interested parties with an opportunity to make oral presentations of data, views, or arguments, the Commission requests that anyone who would like to make an oral presentation concerning this rulemaking contact CPSC's Office of the Secretary (contact information is provided in the
For the reasons stated in this preamble, the Commission proposes to amend the Standard for the Flammability of Clothing Textiles.
Clothing, Consumer protection, Flammable materials, Incorporation by reference, Reporting and recordkeeping requirements, Textiles, Warranties.
For the reasons discussed in the preamble, the Commission proposes to amend title 16 of the Code of Federal Regulations by revising part 1610 to read as follows:
15 U.S.C. 1191-1204.
(a)
(p)
(a) * * *
(2)
(b) * * *
(2)
(c) * * *
(2)
(a) * * *
(2) * * *
(ii)
(b) * * *
(6)
(7)
(b) * * *
(1) * * *
(i) * * *
(A) All samples shall be dry cleaned before they undergo the laundering procedure. Samples shall be dry cleaned in a commercial dry cleaning machine, using one of the following prescribed conditions:
(
(
Samples shall be dry cleaned in a load that is 80% of the machine's capacity.
(B) * * *
(ii)
(iii) AATCC LP1-2021, “Laboratory Procedure for Home Laundering: Machine Washing,” is incorporated by reference. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A read-only copy of the standard is available for viewing on the AATCC website. You may obtain a copy from the American Association of Textile Chemists and Colorists, P.O. Box 12215, Research Triangle Park, North Carolina 27709; telephone (919) 549-8141;
(b)
(i) Conduct preliminary tests in accordance with § 1610.6(a)(2)(i) to determine the fastest burning direction of the fabric.
(ii) Prepare and test five specimens from the fastest burning direction. The burn times determine whether to assign the preliminary classification and proceed to § 1610.6(b) or to test five additional specimens.
(iii) Assign the preliminary classification of Class 1, Normal Flammability and proceed to § 1610.6(b) when:
(A) There are no burn times; or
(B) There is only one burn time, and it is equal to or greater than 3.5 seconds; or
(C) The average burn time of two or more specimens is equal to or greater than 3.5 seconds.
(iv) Test five additional specimens when there is either only one burn time, and it is less than 3.5 seconds; or there is an average burn time of less than 3.5 seconds. Test these five additional specimens from the fastest burning direction as previously determined by the preliminary specimens. The burn times for the 10 specimens determine whether to:
(A) Stop testing and assign the final classification as Class 3, Rapid and Intense Burning only when there are two or more burn times with an average burn time of less than 3.5 seconds; or
(B) Assign the preliminary classification of Class 1, Normal Flammability and proceed to § 1610.6(b) when there are two or more burn times with an average burn time of 3.5 seconds or greater.
(v) If there is only one burn time out of the 10 test specimens, the test is inconclusive. The fabric cannot be classified.
(2) Step 2, Plain Surface Textile Fabrics after refurbishing in accordance with § 1610.6(b)(1).
(i) Conduct preliminary tests in accordance with § 1610.6(a)(2)(i) to determine the fastest burning direction of the fabric.
(ii) Prepare and test five specimens from the fastest burning direction. The burn times determine whether to stop testing and assign the preliminary classification or to test five additional specimens.
(iii) Stop testing and assign the preliminary classification of Class 1, Normal Flammability, when:
(A) There are no burn times; or
(B) There is only one burn time, and it is equal to or greater than 3.5 seconds; or
(C) The average burn time of two or more specimens is equal to or greater than 3.5 seconds.
(iv) Test five additional specimens when there is only one burn time, and it is less than 3.5 seconds; or there is an average burn time less than 3.5 seconds. Test five additional specimens from the fastest burning direction as previously determined by the preliminary specimens. The burn times for the 10 specimens determine the preliminary classification when:
(A) There are two or more burn times with an average burn time of 3.5 seconds or greater. The preliminary classification is Class 1, Normal Flammability; or
(B) There are two or more burn times with an average burn time of less than 3.5 seconds. The preliminary and final classification is Class 3, Rapid and Intense Burning; or
(v) If there is only one burn time out of the 10 specimens, the test results are inconclusive. The fabric cannot be classified.
(3) Step 1, Raised Surface Textile Fabric in the original state.
(i) Determine the area to be most flammable per § 1610.6(a)(3)(i).
(ii) Prepare and test five specimens from the most flammable area. The burn times and visual observations determine whether to assign a preliminary classification and proceed to § 1610.6(b) or to test five additional specimens.
(iii) Assign the preliminary classification and proceed to § 1610.6(b) when:
(A) There are no burn times. The preliminary classification is Class 1, Normal Flammability; or
(B) There is only one burn time and it is less than 4.0 seconds without an SFBB test result code, or it is 4.0 seconds or greater with or without am SFBB test result code. The preliminary classification is Class 1, Normal Flammability; or
(C) There are no base burns (SFBB) regardless of the burn time(s). The preliminary classification is Class 1, Normal Flammability; or
(D) There are two or more burn times with an average burn time of 0.0 to 7.0 seconds with a surface flash only. The preliminary classification is Class 1, Normal Flammability; or
(E) There are two or more burn times with an average burn time greater than 7.0 seconds with any number of base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(F) There are two or more burn times with an average burn time of 4.0 through 7.0 seconds (both inclusive) with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(G) There are two or more burn times with an average burn time less than 4.0 seconds with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(H) There are two or more burn times with an average burn time of 4.0 through 7.0 seconds (both inclusive) with two or more base burns (SFBB). The preliminary classification is Class 2, Intermediate Flammability.
(iv) Test five additional specimens when the tests of the initial five specimens result in either of the following: There is only one burn time and it is less than 4.0 seconds with a base burn (SFBB); or the average of two or more burn times is less than 4.0 seconds with two or more base burns (SFBB). Test these five additional specimens from the most flammable area. The burn times and visual observations for the 10 specimens will determine whether to:
(A) Stop testing and assign the final classification only if the average burn time for the 10 specimens is less than 4.0 seconds with three or more base burns (SFBB). The final classification is Class 3, Rapid and Intense Burning; or
(B) Assign the preliminary classification and continue on to § 1610.6(b) when:
(
(
(
(
(v) If there is only one burn time out of the 10 specimens, the test is inconclusive. The fabric cannot be classified.
(4) Step 2, Raised Surface Textile Fabric After Refurbishing in accordance with § 1610.6(b).
(i) Determine the area to be most flammable in accordance with § 1610.6(a)(3)(i).
(ii) Prepare and test five specimens from the most flammable area. Burn times and visual observations determine whether to stop testing and determine the preliminary classification or to test five additional specimens.
(iii) Stop testing and assign the preliminary classification when:
(A) There are no burn times. The preliminary classification is Class 1, Normal Flammability; or
(B) There is only one burn time, and it is less than 4.0 seconds without an SFBB test result code; or it is 4.0 seconds or greater with or without an SFBB test result code. The preliminary classification is Class 1, Normal Flammability; or
(C) There are no base burns (SFBB) regardless of the burn time(s). The preliminary classification is Class 1, Normal Flammability; or
(D) There are two or more burn times with an average burn time of 0.0 to 7.0 seconds with a surface flash only. The preliminary classification is Class 1, Normal Flammability; or
(E) There are two or more burn times with an average burn time greater than 7.0 seconds with any number of base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(F) There are two or more burn times with an average burn time of 4.0 to 7.0 seconds (both inclusive) with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(G) There are two or more burn times with an average burn time less than 4.0 seconds with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(H) There are two or more burn times with an average burn time of 4.0 to 7.0 seconds (both inclusive) with two or more base burns (SFBB). The preliminary classification is Class 2, Intermediate Flammability.
(iv) Test five additional specimens when the tests of the initial five specimens result in either of the following: There is only one burn time, and it is less than 4.0 seconds with a base burn (SFBB); or the average of two or more burn times is less than 4.0 seconds with two or more base burns (SFBB).
(v) If required, test five additional specimens from the most flammable area. The burn times and visual observations for the 10 specimens determine the preliminary classification when:
(A) The average burn time is less than 4.0 seconds with no more than two base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(B) The average burn time is less than 4.0 seconds with three or more base burns (SFBB). The preliminary and final classification is Class 3, Rapid and Intense Burning; or
(C) The average burn time is greater than 7.0 seconds. The preliminary classification is Class 1, Normal Flammability; or
(D) The average burn time is 4.0 to 7.0 seconds (both inclusive), with no more than two base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or
(E) The average burn time is 4.0 to 7.0 seconds (both inclusive), with three or more base burns (SFBB). The preliminary classification is Class 2, Intermediate Flammability; or
(vi) If there is only one burn time out of the 10 specimens, the test is inconclusive. The fabric cannot be classified.
(b)
(1) For Plain Surface Textile Fabrics:
(i) DNI Did not ignite.
(ii) IBE Ignited, but extinguished.
(iii) _._sec. Actual burn time measured and recorded by the timing device.
(2) For Raised Surface Textile Fabrics:
(i) SF ntr Surface flash, does not break the stop thread. No time recorded.
(ii) _._SF only Time in seconds, surface flash only. No damage to the base fabric.
(iii) _._SFBB Time in seconds, surface flash base burn starting at places other than the point of impingement as a result of surface flash.
(iv) _._SFBB poi Time in seconds, surface flash base burn starting at the point of impingement.
(v) _._SFBB poi* Time in seconds, surface flash base burn possibly starting at the point of impingement. The asterisk is accompanied by the following statement: “Unable to make absolute determination as to source of base burns.” This statement is added to the result of any specimen if there is a question as to origin of the base burn.
Office of Career, Technical, and Adult Education (OCTAE), Rehabilitation Services Administration (RSA), Education; Employment and Training Administration (ETA), Labor.
Joint proposed rule.
The Workforce Innovation and Opportunity Act (WIOA) establishes six primary indicators of performance. Currently, the regulations contain definitions for five of the six performance indicators. However, in the final rule implementing WIOA, the U.S. Departments of Labor and Education (the Departments) indicated that they
Interested persons are invited to submit written comments on the proposed rule on or before November 14, 2022.
You may submit comments, identified by Docket No. ETA-2022-0006 and Regulatory Identification Number (RIN) 1205-AC01, through the Federal eRulemaking Portal:
Please be advised that the Departments will post all comments received that relate to this notice of proposed rulemaking (NPRM) without changes to
President Barack Obama signed WIOA into law on July 22, 2014. WIOA, the first legislative reform of the public workforce system in more than 15 years, superseded titles I and II of the Workforce Investment Act of 1998 and amended the Wagner-Peyser Act and the Rehabilitation Act of 1973 (Rehabilitation Act). WIOA reaffirmed the role of the customer-focused one-stop delivery system, a cornerstone of the public workforce system, and enhanced and increased coordination among several key employment, education, and training programs. In WIOA, Congress directed the Departments to issue regulations implementing statutory requirements to
WIOA sec. 116 establishes the performance indicators and performance reporting requirements to assess the effectiveness of the WIOA six core programs (sec. 116(b)(3)(A)(ii)) in serving WIOA customers (
In the 2016 Joint WIOA Final Rule,
Currently, 20 CFR 677.155(a)(1)(vi) and 34 CFR 361.155(a)(1)(vi) and 463.155(a)(1)(vi) implement the effectiveness in serving employers performance indicator as described in sec. 116(b)(2)(A)(i)(VI) of WIOA, subject to sec. 116(b)(2)(A)(iv), which requires the Secretaries of Labor and Education to jointly develop and establish the performance indicator, after consultation with representatives of State and local governments, business and industry, and other interested parties.
In developing the Joint WIOA Final Rule, the Departments consulted with stakeholders and considered public comments through the Joint WIOA NPRM
After considering all input, the Departments implemented a pilot to test the rigor and feasibility of the proposed approaches to inform the development of a standard definition of the effectiveness in serving employers performance indicator. The pilot tested all three approaches described by the Departments in the Joint WIOA NPRM and Final Rule, with the intent of assessing each approach for its efficacy in measuring effectiveness in serving employers. The Departments included these approaches in the WIOA Joint Performance ICR and required each State to report on any two of the three approaches set out in the Joint WIOA Final Rule, as well as any additional measure a State established related to services to employers.
Because of the narrow scope of this proposed regulation, the Departments encourage commenters to submit, and the Departments will consider, comments regarding the definition of the effectiveness in serving employers performance indicator and the indicator's use in determining if sanctions are necessary for failure to achieve adjusted levels of performance as set forth herein. The proposed amendments are limited to the sections of the regulations detailed in this rulemaking. Comments on other provisions and aspects of the WIOA regulations, whether promulgated jointly by the Departments or independently by each agency, will be considered outside the scope of this rulemaking and will not be considered by the Departments.
In the discussion of the proposed regulatory text changes below, the heading references the DOL CFR part and section number. However, the U.S. Department of Education has identical provisions at 34 CFR part 361, subpart E (under its State VR program regulations) and at 34 CFR part 463, subpart I (under its AEFLA regulations). For purposes of brevity, the discussion of proposed regulatory text changes below appears only once—in conjunction with the DOL section number—and constitutes the Departments' collective explanation of the change. These changes to the joint performance regulations will appear in each of the CFR parts identified in this paragraph when the regulations are finalized and published in the CFR. In this preamble, the Departments describe only the proposed substantive changes. However, for transparency, the Departments note we propose only one purely technical edit to the regulatory text, specifically the replacement of a semicolon with a period at the end of
The Departments reviewed annual report data
• Retention with the Same Employer: Percentage of participants with wage records who exit from WIOA core programs and were employed by the same employer in the second and fourth quarters after exit.
• Repeat Business Customer: Percentage of employers who have used WIOA core program services more than once during the last three reporting periods.
• Employer Penetration: Percentage of employers using WIOA core program services out of all employers in the State.
During the pilot, the Departments determined that the effectiveness in serving employers performance indicator should be a shared outcome across all six core programs within each State (
The pilot began during PY 2016 and continued through PY 2021. For PY 2020—the most recent data available—the piloted approaches for the effectiveness in serving employers performance indicator provided the following performance results:
• Retention with the Same Employer PY 2020 Rate: 54 percent (36 States reported effectiveness in serving employers performance using this definition);
• Repeat Business Customer PY 2020 Rate: 35 percent (47 States reported using this definition); and
• Employer Penetration PY 2020 Rate: 8 percent (44 States reported using this definition).
Exhibit 1 summarizes this information and provides further detail about the calculation methodology used to determine the outcome rate for the three approaches.
Throughout the pilot period, only one State reported on a State-specific approach to the effectiveness in serving employers performance indicator.
The Departments assessed the pilot through a Department of Labor contract that resulted in a final report titled
The study authors identified strengths for the Repeat Business Customer approach, including that it serves as a proxy for employer satisfaction. The study authors identified weaknesses in the Repeat Business Customer approach, including that it: (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a statistical adjustment model to mitigate the weaknesses and improve implementation and interpretation.
•
•
•
The Departments acknowledge that the limitations for Retention with the Same Employer could include the unintended consequence that this approach may be at odds with an employee seeking a higher paying job or employment benefits, and the possibility that the performance outcome for this indicator might not be the result of an employer receiving a service from the workforce development system. The Departments seek public comment on additional ways to mitigate potential unintended consequences and downsides. However, notwithstanding these considerations, the Departments have determined that the strengths of this approach outweigh its limitations, as well as the disadvantages of the other two approaches discussed above. Prioritizing these advantages (
Of the three piloted approaches, Retention with the Same Employer is the least burdensome for both States and employers, as noted in the Joint WIOA Final Rule regulatory impact analysis (RIA) (81 FR at 55968). Retention with the Same Employer uses wage records to calculate the measure. Wage records are the least burdensome records to use because States already have these records for other WIOA-required reporting, and they are the most standardized and statistically valid records available. Because the records are the most standardized records available, States would be able to coordinate data aggregation for the six core programs more easily for Retention with the Same Employer than they would for either Repeat Business Customer or Employer Penetration.
While not all States selected the Retention with the Same Employer indicator for the pilot, all States have the mechanism to collect this information. Data for the Repeat Business Customer and Employer Penetration Rate are collected and reported outside of the PIRL and present obstacles for core programs in terms of data aggregation. As noted above, the Retention with the Same Employer indicator is based on wage records and is the only indicator of these three that collects data through the OMB-approved ICR. As such, the data source for the Retention with the Same Employer indicator is stable and is available to all programs in all States. With respect to the Repeat Business Customer and Employer Penetration indicators, States had to develop data sources on an ad hoc basis; therefore, the data sources vary from State to State using either of these other two indicators, making comparisons less reliable for performance accountability purposes. Because effectiveness in serving employers is a statewide indicator in which one core program would report data on behalf of all six core programs in the State, the Departments are giving heavy consideration to the benefits of the data used to calculate this measure described above.
In addition, the Departments note that Retention with the Same Employer has the benefit of aligning with two of the three employment-related performance indicators, specifically the employment in the 2nd and 4th quarter after exit indicators that measure the employment outcomes of program participants. As such, it promotes the statutory purpose of WIOA, particularly that set forth in WIOA sec. 2(3): “To improve the quality and labor market relevance of workforce investment, education, and economic development efforts . . . to provide America's employers with the skilled workers the employers need to succeed in a global economy.” Using Retention with the Same Employer would measure two levels of program effort—from the standpoint of the employer in retaining an employee on a long-term basis and from the standpoint of a State's efforts to help a participant obtain and maintain stable employment.
After careful consideration of the information gained from the States' reports on using the three piloted approaches and the pilot study's findings, including the strengths and weaknesses described above, the Departments are proposing to define the effectiveness in serving employers performance indicator as Retention with the Same Employer on a statewide level, as tested in the pilot. To encourage programs to work together to serve employers using well-rounded approaches, the Departments have determined this indicator would be measured as a shared outcome across all core programs within each State, rather than measured as an individual performance indicator separately for each of the core programs. As such, the data would be reported by one core program on behalf of all six core programs in the State. This means that the indicator would include participant data from all six core programs in the State to generate one overall State indicator score. As such, this score assesses the State's workforce development system as a whole in terms of its effectiveness in serving employers. Finally, measuring a statewide effectiveness in serving employers performance indicator at the individual program level would be contrary to WIOA's efforts to streamline reporting across the core programs, and this approach reduces the burden of collecting and reporting data for effectiveness in serving employers on these grantees.
This determination requires that changes be made to 20 CFR 677.155(a)(1)(vi) and (c)(6), 34 CFR 361.155(a)(1)(vi) and (c)(6), and 34 CFR 463.155(a)(1)(vi) and (c)(6). These proposed changes are discussed in section II.B of this NPRM.
Section 116(b)(2)(A)(i)(VI) of WIOA applies the same effectiveness in serving employers performance indicator to four non-core programs DOL administers under WIOA title I.
Section 677.155 sets forth the primary indicators that the Departments use to evaluate the performance of WIOA's six core programs, as required by WIOA sec. 116(b)(2)(A)(i). These primary performance indicators apply to the adult, dislocated worker, and youth programs, the AEFLA program, the Wagner-Peyser Act ES program, and the VR program. These primary performance indicators create a common language shared across the programs' performance measures, support system alignment, enhance programmatic decision-making, and help participants make informed decisions related to training. Paragraphs 677.155(a)(1)(vi) and (c)(6) implement the sixth statutory performance indicator as described in sec. 116(b)(2)(A)(i)(VI) of WIOA, subject to sec. 116(b)(2)(A)(iv), which requires the Departments to develop the indicator after consultation with the stakeholders listed at sec. 116(b)(4)(B) and discussed above. This performance indicator measures program effectiveness in serving employers.
For the reasons discussed above, the Departments propose to revise § 677.155(a)(1)(vi) to establish Retention with the Same Employer as the standard definition for measuring effectiveness in serving employers, the sixth performance indicator for all WIOA core programs. The proposed regulation removes the title effectiveness in serving employers
The Departments also propose to make corresponding changes to § 677.155(c)(6) to define effectiveness in serving employers as Retention with the Same Employer for the WIOA title I youth program.
Currently, 20 CFR 677.190 details the circumstances under which sanctions are applied when WIOA core programs fail to achieve adjusted levels of performance. Paragraph (c) sets forth criteria the Departments use to determine which States have met adjusted levels of performance: (1) the overall State program score (§ 677.190(c)(1)); (2) the overall State indicator score (§ 677.190(c)(3)); and (3) the individual indicator score (§ 677.190(c)(5)).
The Departments propose revising § 677.190 to include the effectiveness in serving employers performance indicator in the criteria for determining if a State has failed to meet adjusted levels of performance as part of the overall State indicator score. The proposed revision would establish conforming language regarding the assessment of effectiveness in serving employers as a statewide performance indicator, as expressed in the Joint WIOA Final Rule, and the definition for effectiveness in serving employers proposed in § 677.155(a)(vi) and (c)(6).
As clarified and detailed in the Joint WIOA Final Rule preamble (81 FR at 55847) and joint guidance, the Departments conclude that the collaborative nature of the indicator supports implementing the effectiveness in serving employers performance indicator as a shared measure across all core programs. WIOA sec. 116(b)(2)(A)(i)(VI) requires assessing effectiveness in serving employers. Unlike the statutory provisions describing the other primary indicators of performance in sec. 116(b)(2)(A)(i), the statute does not describe effectiveness in serving employers as based on individual participants' outcomes. Based on this distinction, the Departments are proposing to assess this indicator as a shared indicator across all core programs. The Departments intend to encourage cross-program collaboration, coordination, and a holistic approach to serving employers. To further this collaborative approach, the Departments are requiring that this performance indicator be reported by one core program on behalf of all six core programs within each State.
As proposed, States would continue using the approach recommended in the joint guidance and discussed above, in which one core program reports the data statewide, on behalf of and representing all six core programs, on an annual basis.
The proposed regulatory text for § 677.190 clarifies that effectiveness in serving employers is to be assessed as an overall State indicator score and is excluded from the overall State program score and the individual indicator score. Effectiveness in serving employers is a statewide indicator shared across all core programs and is assessed only as an overall State indicator score, and, therefore, it cannot be attributed to any one program by itself (consequently, one program is reporting on behalf of all six core programs in the State). This is consistent with the holistic nature of the indicator. Furthermore, establishing the effectiveness in serving employers performance assessment as just one statewide indicator ensures that the effectiveness in serving employers indicator does not have the potential to be an outsized influence on the determination of a State's performance success or failure, which could lead to the possible application of sanctions. Because the indicator is a shared score, there is only one score generated for this indicator. Therefore, if the effectiveness in serving employers indicator were assessed as part of each of the six overall State program scores, this same score would repeat for each program in assessing the overall State program score, despite not being attributable to each program as noted above, thereby giving the indicator the potential to be an outsized influence in assessing State performance.
To reflect the effectiveness in serving employers performance indicator's status as a shared statewide indicator as
The Departments propose to add two paragraphs to § 677.190(c)(3) to ensure the effectiveness in serving employers performance indicator's sole use as a shared statewide indicator. The first proposed paragraph, § 677.190(c)(3)(i), begins with language currently found in § 677.190(c)(3), which specifies that the overall State indicator score is the average of the percentages achieved of the adjusted levels of performance by all the core programs on the performance indicator. The Departments propose to exclude the effectiveness in serving employers performance indicator from this calculation.
The second proposed paragraph, § 677.190(c)(3)(ii), ensures the statewide nature of the effectiveness in serving employers performance indicator shared across all core programs and that it would be assessed only as an overall State indicator score. Proposed § 677.190(c)(3)(ii) would adopt in regulations the recommendation in the joint guidance—that one core program report performance data for the effectiveness in serving employers performance indicator on behalf of all six core programs. In addition, proposed § 677.190(c)(3)(ii) specifies that the overall State indicator score for effectiveness in serving employers is calculated as the statewide percentage achieved of the statewide adjusted level of performance. Finally, proposed § 677.190(c)(3)(ii) also references guidance to signal to States that the Departments will provide additional details and explanations for reporting on the effectiveness in serving employers performance indicator in joint guidance. This reference to guidance is consistent with other sections of the Departments' Joint WIOA Performance Accountability regulations.
Therefore, all core programs would collect the necessary information for this indicator and submit the information to one core program. That core program would report the performance data to the relevant Federal agency. This approach is consistent with current practice under the joint guidance, whereby the State selects the core program to receive the information and then report to the relevant Federal agency. This reporting requirement differentiates this indicator from the other five primary indicators of performance. The performance outcomes for the other five primary indicators of performance are reported by each core program to its respective Federal agency.
For the other five primary indicators of performance, the overall State indicator score is based on averages divided by the adjusted level of performance, whereas for the effectiveness in serving employers performance indicator, the overall State indicator score is based on actual results divided by the adjusted level of performance. Because effectiveness in serving employers is a statewide indicator, there are no individual indicator scores to average for each core program.
The Departments propose to revise paragraph (c)(5) to specify that the Departments will not include the effectiveness in serving employers performance indicator when calculating individual indicator scores.
Under Executive Order (E.O.) 12866, OIRA determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. See 58 FR 51735 (Oct. 4, 1993). Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Id. This proposed rule is a significant regulatory action, although not an economically significant regulatory action under sec. 3(f) of E.O. 12866. Accordingly, OMB reviewed this proposed rule.
E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and, in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where 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.
Section III.A.2 provides a summary of the results of the RIA. Section III.A.3 describes the need for the proposed rule, and section III.A.4 describes the process used to estimate the costs and cost savings of the proposed rule and the general inputs used, such as wages and number of affected entities. Section III.A.5 explains how the provisions of the proposed rule would result in quantifiable costs and cost savings and presents the calculations the Departments used to estimate them. In addition, section III.A.5 describes the qualitative benefits of the proposed rule. Section III.A.6 summarizes the estimated first-year and 10-year total and annualized costs, cost savings, net costs, and transfer payments of the proposed rule. Finally, section III.A.7 describes the regulatory alternatives considered when developing the proposed rule.
The Departments estimate that the proposed rule would result in costs and cost savings. As shown in Exhibit 2, the proposed rule is expected to have an annualized quantifiable cost of $44,573 and a total 10-year quantifiable cost of $313,071 at a discount rate of 7 percent.
The cost of the proposed rule is associated with rule familiarization and the requirement to calculate and report Retention with the Same Employer for the effectiveness in serving employers performance indicator for 57 States and 78 VR agencies.
The Departments cannot quantify the benefits of the proposed rule; therefore, section III.A.5 (Subject-by-Subject Analysis) describes the benefits qualitatively.
In the Joint WIOA Final Rule, the Departments described a phased approach, which included a pilot study, to defining in regulation the sixth statutory performance indicator—effectiveness in serving employers—required by WIOA. This proposed rulemaking is necessary to complete implementation of the performance accountability requirements as discussed in the Joint WIOA Final Rule and required by statute. Specifically, States, under the Departments' joint guidance, piloted the following definitions for the effectiveness in serving employers performance indicator:
• Retention with the Same Employer: Percentage of participants with wage records who exit from WIOA core programs and were employed by the same employer in the second and fourth quarters after exit.
• Repeat Business Customer: Percentage of employers who have used WIOA core program services more than once during the last three reporting periods.
• Employer Penetration: Percentage of employers using WIOA core program services out of all employers in the State.
The Departments propose establishing Retention with the Same Employer as the standard definition of the effectiveness in serving employers performance indicator to complete implementation of the WIOA performance accountability requirements to assess the effectiveness of States and local areas in achieving positive outcomes.
The Departments estimated the costs and cost savings of the proposed rule relative to the existing baseline (
The baseline consists of the combination of piloted approaches for effectiveness in serving employers that States collected in 2020 and would be expected to continue to report in the absence of this proposed rule. The baseline uses DOL historical data on the number of States that report each combination of the three piloted approaches for the effectiveness in serving employers performance indicator. Exhibit 3 displays DOL data from 2017 through 2020 on the existing effectiveness in serving employers approach combinations. The Departments used the most recent year of State data reported for PY 2020 to define the existing baseline of States reporting combinations of approaches to the effectiveness in serving employers performance indicator.
In accordance with the RIA guidance articulated in OMB's Circular A-4 and consistent with the Departments' practices in previous rulemakings, this RIA focuses on the likely consequences of the proposed rule (
Exhibit 4 presents the number of entities that are expected to be affected by the proposed rule. The Departments provide these estimates and use them throughout this analysis to estimate the costs and cost savings of the proposed rule.
In section III.A.5 (Subject-by-Subject Analysis), the Departments present the costs, including labor, associated with the implementation of the provisions of the proposed rule. Exhibits 5a through 5c present the hourly compensation rates for the occupational categories expected to experience a change in level of effort (workload) due to the proposed rule. We used the Bureau of Labor Statistics' mean hourly wage rate for State and local employees.
The Departments' analysis below covers the estimated costs and cost savings of the proposed rule.
The following sections describe the costs of the proposed rule.
If the proposed rule is finalized, State- and local-level DOL programs, State- and local-level AEFLA programs, and State VR agencies would need to familiarize themselves with the new regulations. Consequently, this would impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization at the State level, the Departments multiplied the estimated number of management analysts (one) by the time required to read and review the rule (1 hour), and by the applicable hourly compensation rate ($59.70/hour). We multiplied this result by the sum of the number of States (57) for the DOL programs, the number of States (57) for the AEFLA programs, and the number of VR agencies (78). This calculation yields $11,462 in one-time labor costs, which is equal to an average annual cost of $1,146 over the 10-year analysis period.
At the local level for the DOL programs, the Departments multiplied the estimated number of management analysts (one) by the time required to read and review the rule (1 hour), by the applicable hourly compensation rate ($73.67/hour), and by the number of local boards (580). This calculation yields $42,730 in one-time labor costs, which is equal to an average annual cost of $4,273 over the 10-year analysis period.
At the local level for the AEFLA programs, the Departments multiplied the estimated number of management analysts (one) by the time required to read and review the rule (1 hour), by the applicable hourly compensation rate ($73.67/hour), and by the number of local AEFLA providers (1,719). This calculation yields $126,643 in one-time labor costs, which is equal to an average annual cost of $12,664 over the 10-year analysis period.
The sum of these costs yields a total one-time labor cost of $180,835 for State- and local-level DOL programs, State- and local-level AEFLA programs, and State VR agencies to read and review the new rule. Over the 10-year period of analysis, these estimated one-time costs result in an average annual cost of $18,084 undiscounted, or $21,199 and $25,747 at discount rates of 3 and 7 percent, respectively.
WIOA sec. 116(b)(2)(A)(i)(VI) provides that the sixth primary indicator of performance will be an indicator that measures program effectiveness in serving employers, which WIOA sec. 116(b)(2)(A)(iv) directs the Departments to establish. Currently, under the Departments' joint guidance, States must report at least two of the following three approaches to measuring effectiveness in serving employers: Retention with the Same Employer, Employer Penetration, and Repeat Business Customer. If the proposed rule is finalized, all States would be required to adopt the same approach to measure effectiveness in serving employers: Retention with the Same Employer. Twenty States do not currently report the Retention with the Same Employer approach to the effectiveness in serving employers
At the Federal level for the DOL core programs, the Departments estimate the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance development (8 hours) and by the hourly compensation rate ($91.80/hour). This calculation results in a one-time labor cost of $734.
The Departments estimated DOL's annual labor costs for calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the DOL core programs, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for programming (6 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($358) by the number of States (57) to estimate this one-time cost at $20,417.
The Departments estimated the State-level DOL core programs' annual labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($239) by the number of States (57) to estimate this annual cost at $13,611.
At the Federal level for the AEFLA program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance development (8 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in a one-time labor cost of $734.
The Departments estimated AEFLA's annual labor cost for calculating and reporting Retention with the Same Employer at the Federal level by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the AEFLA program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for programming and data collection (6 hours) and by the hourly compensation rate ($59.70). We multiplied the labor cost ($358) by the number of States (57) to estimate this one-time cost at $20,417.
The Departments estimated the State-level AEFLA program's annual labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($239) by the number of States (57) to estimate this annual cost at $13,611.
At the Federal level for the VR program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance development (8 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in a one-time labor cost of $734.
The Departments estimated the annual labor costs associated with calculating and reporting Retention with the Same Employer at the Federal level for the VR program by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the VR program, the Departments estimated the one-time labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for programming (6 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($358) by the number of VR agencies (78) to estimate this one-time cost at $27,939.
The Departments estimated the State-level VR program's annual labor cost associated with calculating and reporting Retention with the Same Employer by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($239) by the number of VR agencies (78) to estimate this annual cost of $18,626.
The sum of these one-time costs of the retention measure yields $70,977 for individuals from the Federal- and State-level DOL core programs, AEFLA program, and VR program. In addition, the sum of the annual costs associated with calculating and reporting Retention with the Same Employer for these entities yields $46,951 per year. Exhibits 6a and 6b summarize the above calculations.
The costs in Exhibits 6a and 6b represent the costs for all 57 States to report the Retention with the Same Employer approach to the effectiveness in serving employers performance indicator. Currently, 37 States already report Retention with the Same Employer. The remaining 20 States would face costs with having to start reporting Retention with the Same Employer. We therefore multiply the total one-time costs ($70,977) and annual costs ($46,951) by the 35.1 percent of States not currently reporting the retention measure (20 out of 57) yielding $24,904 in one-time costs and an additional $16,474 in annual costs to increase the number of States reporting the retention measure from 37 to all 57.
The estimated total cost from requiring all States to report Retention with the Same Employer over the 10-year period is $173,169 undiscounted, or $153,172 and $132,235 at discount rates of 3 and 7 percent, respectively, with an annualized cost over the 10-year period of $17,956 and $18,827 at discount rates of 3 and 7 percent, respectively.
The following sections describe the cost savings of the proposed rule.
The pilot program announced in the 2016 Joint WIOA Final Rule required States to report two of the three approaches for measuring effectiveness in serving employers. Under this proposed rule States would no longer face costs associated with collecting the information required to calculate the Employer Penetration or Repeat Business Customer approaches to the effectiveness in serving employers performance indicator. To estimate the cost savings, we first update the costs associated with collecting each of these pilot approaches following the assumptions used to estimate the cost of the Retention with the Same Employer pilot approach in the 2016 Joint WIOA Final Rule. We then estimate the cost savings under the proposed rule associated with the proportion of States that would no longer report the various combinations of the pilot approaches that States report in the baseline.
Currently, 9 States report Retention with the Same Employer and Employer Penetration, 12 States report Retention with the Same Employer and Repeat Business Customer, 20 States report Employer Penetration and Repeat Business Customer, and 15 States report all 3 approaches to defining the effectiveness in serving employers performance indicator. To estimate cost savings, we first estimate the annual cost of all 57 States collecting data for, calculating, and reporting the percentage of employers using services out of all employers in the State (Employer Penetration) and the percentage of repeat employers using services within the previous 3 years (Repeat Business Customer). We then multiply the annual cost by the percentage of States currently using the pilot approach to estimate the cost savings. Below, we present the updated costs associated with all 57 States reporting each pilot approach, and then present the cost savings associated with the proportion of States no longer reporting them.
Under the pilot program, States must use two of three specified approaches to measure effectiveness in serving employers. The proposed rule would only require States to collect data for, calculate, and report the first approach (Retention with the Same Employer). This section calculates the cost for all 57 States to collect data, calculate, and report Employer Penetration and then uses these costs to estimate cost savings
At the Federal level for the DOL core programs, the Departments estimated the annual labor cost associated with Employer Penetration by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the DOL core programs, the Departments estimated Employer Penetration's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to Local WDBs (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($657) by the number of States (57) to estimate this annual cost at $37,431.
For local-level DOL core programs, the Departments estimated the annual labor cost for Employer Penetration by multiplying the estimated number of management analysts (one) by the time required for data collection (4 hours) and by the hourly compensation rate ($73.67/hour). We multiplied the labor cost ($295) by the number of Local WDBs (580) to estimate this annual cost at $170,920.
At the Federal level for the AEFLA program, the Departments estimated the annual labor cost associated with Employer Penetration by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the AEFLA program, the Departments estimated Employer Penetration's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to local AEFLA providers (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($657) by the number of States (57) to estimate this annual cost at $37,431.
For the local-level AEFLA program, the Departments estimated the annual labor cost for Employer Penetration by multiplying the estimated number of management analysts (one) by the time required for data collection (4 hours) and by the hourly compensation rate ($73.67/hour). We multiplied the labor cost ($295) by the number of local AEFLA providers (1,719) to estimate this annual cost at $506,572.
At the Federal level for the VR program, the Departments estimated the annual labor cost associated with Employer Penetration by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the VR program, the Departments estimated Employer Penetration's annual labor cost by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). In addition, we added the estimated number of rehabilitation counselors (62 assistants) by the time required for data collection (1 hour each) and by the hourly compensation rate ($47.94/hour). We summed the labor cost for both categories and multiplied it ($3,211) by the number of VR agencies (78) to estimate this annual cost at $250,472.
Summing these annual costs for all 57 States to calculate and report Employer Penetration yields $1,003,929 per year for the Federal-, State-, and local-level DOL core programs and AEFLA programs and the State-level VR programs. The Departments used the updated costs in Exhibit 7 to estimate the cost savings for States that would no longer report this pilot approach.
This section calculates the cost for all 57 States to collect data, calculate, and report the Repeat Business Customer approach to the effectiveness in serving employers performance indicator. The Departments use these costs to estimate cost savings for the proportion of States that would no longer report this pilot approach under the proposed rule.
At the Federal level for the DOL core programs, the Departments estimated the annual labor cost associated with Repeat Business Customer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour).
At the State level for the DOL core programs, the Departments estimated Repeat Business Customer's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to Local WDBs (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($657) by the number of States (57) to estimate this annual cost at $37,431.
For the local-level DOL core programs, the Departments estimated the annual labor cost for Repeat Business Customer by multiplying the estimated number of management analysts (one) by the time required for data collection (6 hours) and by the hourly compensation rate ($73.67/hour). We multiplied the labor cost ($442) by the number of Local WDBs (580) to estimate this annual cost at $256,380.
At the Federal level for the AEFLA program, the Departments estimated the annual labor cost associated with Repeat Business Customer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the DOL core programs, the Departments estimated Repeat Business Customer's annual labor cost by multiplying the estimated number of management analysts (one) by the sum of time required for data collection (4 hours), providing training and technical assistance to local AEFLA providers (3 hours), and Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). We multiplied the labor cost ($657) by the number of States (57) to estimate this annual cost at $37,431.
For the local-level AEFLA program, the Departments estimated the annual labor cost for Repeat Business Customer by multiplying the estimated number of management analysts (one) by the time required for data collection (6 hours) and by the hourly compensation rate ($73.67/hour). We multiplied the labor cost ($442) by the number of local AEFLA providers (1,719) to estimate this annual cost at $759,859.
At the Federal level for the VR program, the Departments estimated the annual labor cost associated with Repeat Business Customer by multiplying the estimated number of GS-14, Step 5 management analysts (one) by the time required for technical assistance delivery (4 hours) and by the hourly compensation rate ($91.80/hour). This calculation would result in an annual labor cost of $367.
At the State level for the VR program, the Departments estimated Repeat Business Customer's annual labor cost by multiplying the estimated number of management analysts (one) by the time required for Federal reporting (4 hours) and by the hourly compensation rate ($59.70/hour). In addition, we added the estimated number of rehabilitation counselors (62 counselors) by the time required for data collection (1 hour each) and by the hourly compensation rate ($47.94/hour). We summed the labor cost for both categories ($3,211) and multiplied it by the number of VR agencies (78) to estimate this annual cost of $250,472.
Summing these annual costs for all States to calculate and report Repeat Business Customer yields $1,342,676 per year for the Federal-, State-, and local-level DOL core programs and AEFLA programs and the State-level VR programs. The Departments used the updated costs in Exhibit 8 to estimate the cost savings for States to no longer report this pilot approach.
Under the proposed rule, the 14 States that currently report only the Retention with the Same Employer and Employer Penetration pilot approaches would have cost savings from no longer having to collect data for, calculate, and report Employer Penetration. Multiplying the annual cost for all 57 States to collect data for, calculate, and report Employer Penetration ($1,003,929) by the 17.5 percent of States reporting these two pilot approaches only (10 out of 57) yields annual cost savings of $176,128.
The 12 States currently reporting only the Retention with the Same Employer and Repeat Business Customer pilot approaches would have cost savings from no longer collecting data for, calculating, and reporting Repeat Business Customer. Multiplying the annual cost for all 57 States to collect data for, calculate, and report Repeat Business Customer ($1,342,676) by the 21.1 percent of States reporting these two pilot approaches only (12 out of 57) yields annual cost savings of $282,669.
The 20 States currently reporting only Employer Penetration and Repeat Business Customer and the 15 States currently reporting all three pilot approaches to the effectiveness in serving employers performance indicator would have cost savings from no longer collecting data for, calculating, and reporting both Employer Penetration and Repeat Business Customer. Multiplying the sum of annual costs for all 57 States to collect data for, calculate, and report both Employer Penetration and Repeat
Summing these annual cost savings yields total annual cost savings for all 57 States of $1,899,694 from the proposed rule. The Departments estimate total cost savings over the 10-year period at $18,996,941 undiscounted, or $16,690,919 and $14,276,642 at discount rates of 3 and 7 percent, respectively. At discount rates of 3 and 7 percent, the 10-year period results in annualized cost savings of $1,956,685 and $2,032,673, respectively.
The Departments cannot quantify the proposed rule's benefits associated with improving the WIOA core programs' effectiveness in serving employers. Measuring effectiveness in serving employers allows DOL, AEFLA, and RSA programs to set goals, monitor, and learn how to serve employers more effectively.
The Departments cannot quantify these estimated benefits because we do not have quantitative data on how the effectiveness in serving employers performance measure has influenced program implementation and how much it would influence future policies.
Requiring all States to calculate and report Retention with the Same Employer as the effectiveness in serving employers performance indicator would make it easier to compare WIOA core programs' effectiveness in serving employers performance across States and ensure all States have an indicator of job turnover and match quality between workers exiting WIOA core programs and employers. Retention with the Same Employer demonstrates a continued relationship between the employer and participants who have exited WIOA core programs. While many circumstances can have an impact on an employer's retention of employees, an indication that an employee is still working for the same employer in both the second and fourth quarters after exiting from a WIOA program demonstrates a level of success for both parties, as retention of an employee reduces the costs to the employer associated with employee turnover and retraining. Thus, reporting Retention with the Same Employer can help inform design and implementation of program services to reduce job turnover and improve employer-employee match quality. Improved matching and reduced turnover allow employees and employers to operate closer to their productive potential and can make it more worthwhile for employers to invest in training their employees and for employees to invest in learning employer-specific skills.
Exhibit 9 summarizes the estimated total costs and cost savings of the proposed rule over the 10-year analysis period. Discontinuing reporting of Employer Penetration and Repeat Business Customer has the largest effect as a cost savings. The Departments estimate the total net cost savings of the proposed rule at $13,963,572 at a discount rate of 7 percent.
The Departments estimate the annualized costs of the proposed rule at $44,574 and the annualized cost savings at $2,032,673, at a discount rate of 7 percent. The Departments estimate the proposed rule would result in an annualized net quantifiable cost savings of $1,988,098 and a total 10-year net cost savings of $13,963,572, both at a discount rate of 7 percent and expressed in 2020 dollars. Exhibit 10 summarizes the estimated total costs and cost savings of the proposed rule over the 10-year analysis period.
The Departments considered two alternatives to the proposed definition of the effectiveness in serving employers performance indicator. First, the Departments considered requiring use of the Employer Penetration pilot approach, which reports the percentage of employers using services out of all employers in the State. This approach would have required counts of services provided to employers, requiring States and local areas to report unique counts of individual employers receiving services through WIOA's programs. Employer Penetration would require a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Employer Penetration would have the benefit of capturing the extent to which employers within a State are engaged with WIOA-funded services and would provide State programs an incentive to work with additional employers. As discussed earlier in Section II.A (Pilot Programs for Workforce Innovation and Opportunity Act Core Programs), on behalf of the Departments, DOL commissioned an examination of State experiences with the various approaches through a third-party contractor, which found weaknesses in this pilot approach, including (1) an emphasis on quantity rather than quality or intensity of the employer service provided; (2) reliability issues associated with data entry and the process to count unique establishments; (3) measurement of program output rather than outcome; (4) potential for creation of perverse incentives to prioritize program breadth rather than depth in service and delivery; and (5) a lack of sensitivity to industry sectors targeted by State and local workforce agencies.
Costs include calculating and reporting Employer Penetration and rule familiarization for WIOA core programs. The Departments estimate the total cost of the first alternative over the 10-year period at $2.1 million undiscounted, or $1.9 million and $1.6 million at discount rates of 3 and 7 percent, respectively, and an annualized cost of the 10-year period at $220,489 and $229,543 with discount rates of 3 and 7 percent, respectively.
To calculate cost savings the Departments used the estimated cost of collecting data for, calculating, and reporting the two other effectiveness in serving employers approaches (Retention with the Same Employer and Repeat Business Customer), and then estimated the cost savings for the proportion of States that would transition from their existing reporting combination of two or three effectiveness in serving employers approaches to the single Employer Penetration approach to the performance indicator. Exhibit 12 summarizes these calculations below.
The Departments estimated the total cost savings associated with the first alternative over the 10-year period at $11.4 million undiscounted, or $10.0 million and $8.5 million at discount rates of 3 and 7 percent, respectively, with an annualized cost savings associated with the first alternative over the 10-year period at $1,171,723 and $1,217,227 with discount rates of 3 and 7 percent, respectively.
We estimate the first regulatory alternative to result in total net cost savings over the 10-year period of $9.2 million undiscounted, or $8.1 million and $6.9 million at discount rates of 3 and 7 percent, respectively, with an annualized net cost savings of the 10-year period at $951,233 and $987,684 with discount rates of 3 and 7 percent, respectively.
The Departments considered a second regulatory alternative that would require the use of the Repeat Business Customer approach to the effectiveness in serving employers performance indicator, which reports the percentage of employers receiving services in a year who also received services within the previous 3 years. This approach to the effectiveness in serving employers measure requires counts of services provided to employers through WIOA's programs. Repeat Business Customer requires a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Repeat Business Customer captures the extent to which employers within a State can find workers and the employer's level of satisfaction with the public workforce system services. The Departments, in an Urban Institute study, found weaknesses in this pilot approach including that it (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a statistical adjustment model to mitigate the weaknesses and improve implementation and interpretation.
Costs include the cost of calculating and reporting Repeat Business Customer and the cost of rule familiarization for WIOA core programs. The Departments estimated the total cost of the second alternative over the 10-year period at $2.3 million undiscounted, or $2.1 million and $1.8 million at discount rates of 3 and 7 percent, respectively, with an annualized cost of the 10-year period at $241,449 and $250,620 with discount rates of 3 and 7 percent, respectively.
To calculate cost savings, the Departments used the estimated cost of collecting data for, calculating, and reporting the two other effectiveness in serving employers approaches (Retention with the Same Employer and Employer Penetration), and then estimated the cost savings for the proportion of States that would transition from their existing reporting combination of two or three effectiveness in serving employers approaches to the single Repeat Business Customer approach to the performance indicator. Exhibit 14 summarizes these calculations below.
The Departments estimated total cost savings associated with the second alternative over the 10-year period is $8.2 million undiscounted, or $7.2 million and $6.2 million at discount rates of 3 and 7 percent, respectively with an annualized cost associated with the second alternative over the 10-year period is $847,744 and $880,666 with discount rates of 3 and 7 percent, respectively.
The Departments estimate the second regulatory alternative to result in total net cost savings over the 10-year period of $5.9 million undiscounted, or $5.2 million and $4.4 million at discount rates of 3 and 7 percent, respectively, with an annualized net cost savings of the 10-year period at $606,295 and $630,046 with discount rates of 3 and 7 percent, respectively.
Exhibit 15 summarizes the estimated net cost savings associated with the three considered approaches to the effectiveness in serving employers performance indicator (
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The Departments determined that the proposed rule would not have a significant economic impact on a substantial number of small entities because any impacted small entities are already receiving financial assistance under the WIOA program and likely would continue to do so. The Departments have certified this to the Chief Counsel for Advocacy, Small Business Administration, pursuant to the RFA. 5 U.S.C. 605.
The WIOA title I adult, dislocated worker, and youth program grantees, the WIOA title II State-level AEFLA grantees, WIOA title III Wagner-Peyser ES grantees, and VR program grantees (under the Rehabilitation Act as amended by WIOA title IV), are State government agencies and, therefore, are not considered small entities. However, the proposed rule could have a minimal impact on a variety of AEFLA local providers, some of which are small entities by U.S. Small Business Administration (SBA) size standards:
As proposed in this NPRM, the definition of the effectiveness in serving employers performance indicator would have a minimal impact on AEFLA local providers. Each local AEFLA provider is expected to incur a $73.67 cost to review the rule. The $73.67 cost to review the rule is a de minimis burden on the entities incurring the cost, including the smallest entities subject to the rule. For example, the average community-based organization (NAICS 813410—civic and social organizations)—the business type with the smallest average revenue at $702,445—would spend much less than 1 percent of their annual revenue on this cost. Among libraries (NAICS 519120) with fewer than 5 employees (the subset of the above listed entity types with the least average revenue, by size in employees, at $110,980), this cost is 0.066 percent of the average entity's annual revenue.
Local AEFLA providers are not estimated to incur any new costs to report Retention with the Same Employer and may incur cost savings if they currently report Employer Penetration or Repeat Business Customers. Local AEFLA providers that currently report Employer Penetration would incur cost savings of $295 and local AEFLA providers that currently report Repeat Business Customers would incur cost savings of $442. Federal transfer payments to States would fully finance the minor WIOA program cost burdens on grantees that would result from finalizing the proposed rule. Therefore, the Department hereby certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.
The purposes of the PRA, 44 U.S.C. 3501
As part of their continuing efforts to reduce paperwork and respondent burden, the Departments conduct a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to ensure that (1) the public understands the Departments' collection instructions; (2) respondents can provide the requested data in the desired format; (3) reporting burden (time and financial resources) is minimized; (4) collection instruments are clearly understood; and (5) the Departments can properly assess the impact of collection requirements on respondents. Furthermore, the PRA requires all Federal agencies to analyze proposed regulations for potential time burdens on the regulated community created by provisions in the proposed regulations that require any party to obtain, maintain, retain, report, or disclose information. The information collection requirements also must be submitted to OMB for approval.
A Federal agency may not conduct or sponsor a collection of information unless it is approved by OMB under the PRA and displays a currently valid OMB control number. The public also is not required to respond to a collection of information unless it displays a currently valid OMB control number. In addition, notwithstanding any other provisions of law, no person will be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number. See 44 U.S.C. 3512.
The proposed rule would revise ETA 9169, WIOA Statewide and Local Performance Report Template approved under OMB Control Number 1205-0526. The revision would require “Retention with the Same Employer” as the only definition of the effectiveness in serving employers performance indicator in the WIOA Common Performance Reporting ICR by an entity that reports to the Departments on behalf of the State. Data elements for the collection and calculation for the two other piloted definitions of the effectiveness in serving employers performance indicator—Repeat Business Customer and Employer Penetration—would be removed from the ICR, along with the corresponding breakouts of the employer services that comprise them. No other changes are proposed for this ICR. In accordance with the PRA, the Departments have submitted the associated ICR to OMB in concert with the publishing of this proposed rule. This provides the public the opportunity to submit comments on the ICR, either directly to the Departments or to OMB. The Departments will only consider comments within the scope of this ICR. The 60-day period for the public to submit comments begins with the submission of the ICR to OMB. Comments regarding this ICR may be submitted electronically through
E.O. 13132 aims to guarantee the division of governmental
E.O. 13132 further provides that agencies must implement a regulation that limits the policymaking discretion of the States only where there is constitutional and statutory authority for the regulation, and it addresses a problem of national significance. For a regulation administered by the States, the National Government must grant the States the maximum administrative discretion possible to avoid intrusive Federal oversight of State administration, and agencies must adhere to special requirements for a regulation that pre-empts State law. E.O. 13132 also sets forth the procedures agencies must follow for certain regulations with federalism implications, such as preparation of a summary impact statement.
Accordingly, the Departments reviewed this WIOA-required NPRM for federalism implications and have concluded that none exist in this rulemaking. This joint NPRM does not contain any substantial direct effects on States, on the relationships between the States, or on the distribution of power and responsibilities among the various levels of government as described by E.O. 13132. Therefore, the Departments concluded that this NPRM does not have a sufficient federalism implication to warrant the preparation of a summary impact statement.
UMRA directs agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. A Federal mandate is any provision in a regulation that imposes an enforceable duty upon State, local, or Tribal governments, or imposes a duty upon the private sector.
Following the consideration of the above factors, the Departments concluded this joint NPRM contains no unfunded Federal mandates, as defined in 2 U.S.C. 658(6) to include either a “Federal intergovernmental mandate” or a “Federal private sector mandate.” Reporting Retention with the Same Employer as the effectiveness in serving employers performance indicator as proposed does not place any additional burdens on State, local, and Tribal governments because the WIOA core programs already collect and report the necessary information. Furthermore, Federal program funding triggers the reporting requirement; therefore, the Departments provide funding for any associated reporting mandate. Private training entities participate as a provider under a WIOA core program on a purely voluntary basis, and voluntarily assume the information collection.
The Departments reviewed this proposed rule under the terms of E.O. 13175 and DOL's Tribal Consultation Policy and have determined that it would have Tribal implications, because the proposed regulations would have substantial direct effects on: one or more Indian Tribes; the relationship between the Federal government and Indian Tribes; or the distribution of power and responsibilities between the Federal government and Indian Tribes. Therefore, DOL has prepared a Tribal summary impact statement. Because the Tribal implications of this proposed rule relate only to DOL Indian and Native American (INA) program grantees, DOL has printed the requisite Tribal summary impact statement in the DOL-specific effectiveness in serving employers NPRM published elsewhere in this issue of the
Employment, Grant programs—labor.
Administrative practice and procedure, Grant programs—education, Grant programs—social programs, Reporting and recordkeeping requirements, Vocational rehabilitation.
Adult education, Grant programs—education.
For the reasons discussed in the preamble, the Employment and Training Administration proposes to amend 20 CFR part 677 as follows:
Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(1) * * *
(vi) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) * * *
(6) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) Whether a State has failed to meet adjusted levels of performance will be determined using the following criteria:
(1) The overall State program score, which is expressed as the percent achieved, compares the actual results achieved by a core program on the primary indicators of performance, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi), to the adjusted levels of performance for that core program. The average of the percentages achieved of the adjusted level of performance for each of the primary indicators, except for the effectiveness in serving
(2) However, until all indicators for the core program have at least 2 years of complete data, the overall State program score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data for that program.
(3) The overall State indicator score, which is expressed as the percent achieved, compares the actual results achieved on a primary indicator of performance by all core programs in a State to the adjusted levels of performance for that primary indicator.
(i) The average of the percentages achieved of the adjusted level of performance by all of the core programs on that indicator will constitute the overall State indicator score, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi).
(ii) The overall State indicator score for effectiveness in serving employers, as reported by one core program on behalf of all six core programs in the State, as described in guidance, is a statewide indicator that reflects the performance for all core programs. It is calculated as the statewide percentage achieved of the statewide adjusted level of performance.
(4) However, until all indicators for the State have at least 2 years of complete data, the overall State indicator score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data in a State.
(5) The individual indicator score, which is expressed as the percent achieved, compares the actual results achieved by each core program on each of the individual primary indicators to the adjusted levels of performance for each of the program's primary indicators of performance, except for the effectiveness in serving employers indicator described in § 677.155(a)(1)(vi).
For the reasons stated in the preamble, the Department of Education proposes to amend 34 CFR parts 361 and 463 as follows:
Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(1) * * *
(vi) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) * * *
(6) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) Whether a State has failed to meet adjusted levels of performance will be determined using the following criteria:
(1) The overall State program score, which is expressed as the percent achieved, compares the actual results achieved by a core program on the primary indicators of performance, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi), to the adjusted levels of performance for that core program. The average of the percentages achieved of the adjusted level of performance for each of the primary indicators, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi), by a core program will constitute the overall State program score.
(2) However, until all indicators for the core program have at least 2 years of complete data, the overall State program score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data for that program.
(3) The overall State indicator score, which is expressed as the percent achieved, compares the actual results achieved on a primary indicator of performance by all core programs in a State to the adjusted levels of performance for that primary indicator.
(i) The average of the percentages achieved of the adjusted level of performance by all of the core programs on that indicator will constitute the overall State indicator score, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi).
(ii) The overall State indicator score for effectiveness in serving employers, as reported by one core program on behalf of all six core programs in the State, as described in guidance, is a statewide indicator that reflects the performance for all core programs. It is calculated as the statewide percentage achieved of the statewide adjusted level of performance.
(4) However, until all indicators for the State have at least 2 years of complete data, the overall State indicator score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data in a State.
(5) The individual indicator score, which is expressed as the percent achieved, compares the actual results achieved by each core program on each of the individual primary indicators to the adjusted levels of performance for each of the program's primary indicators of performance, except for the effectiveness in serving employers indicator described in § 361.155(a)(1)(vi).
Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(1) * * *
(vi) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) * * *
(6) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. For the six core programs, this indicator is a statewide indicator reported by one core program on behalf of all six core programs in the State, as described in guidance.
(c) Whether a State has failed to meet adjusted levels of performance will be determined using the following criteria:
(1) The overall State program score, which is expressed as the percent achieved, compares the actual results achieved by a core program on the primary indicators of performance, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi), to the adjusted levels of performance for that core program. The average of the percentages achieved of the adjusted level of performance for each of the primary indicators, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi), by a core program will constitute the overall State program score.
(2) However, until all indicators for the core program have at least 2 years of complete data, the overall State program score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data for that program.
(3) The overall State indicator score, which is expressed as the percent achieved, compares the actual results achieved on a primary indicator of performance by all core programs in a State to the adjusted levels of performance for that primary indicator.
(i) The average of the percentages achieved of the adjusted level of performance by all of the core programs on that indicator will constitute the overall State indicator score, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi).
(ii) The overall State indicator score for effectiveness in serving employers, as reported by one core program on behalf of all six core programs in the State, as described in guidance, is a statewide indicator that reflects the performance for all core programs. It is calculated as the statewide percentage achieved of the statewide adjusted level of performance.
(4) However, until all indicators for the State have at least 2 years of complete data, the overall State indicator score will be based on a comparison of the actual results achieved to the adjusted level of performance for each of the primary indicators that have at least 2 years of complete data in a State.
(5) The individual indicator score, which is expressed as the percent achieved, compares the actual results achieved by each core program on each of the individual primary indicators to the adjusted levels of performance for each of the program's primary indicators of performance, except for the effectiveness in serving employers indicator described in § 463.155(a)(1)(vi).
Employment and Training Administration (ETA), Labor.
Proposed rule.
The Workforce Innovation and Opportunity Act (WIOA) established six primary indicators of performance for certain WIOA-authorized programs. Currently, the regulations contain definitions for five of the six performance indicators. In the final rule implementing WIOA, the U.S. Departments of Labor and Education (the Departments) indicated that they would initially implement the sixth indicator of performance—effectiveness in serving employers—in the form of a pilot program to test the feasibility and rigor of three proposed approaches. With the pilot completed, the Departments are engaging in a rulemaking under RIN 1205-AC01 to incorporate a standard definition of the performance indicator for effectiveness in serving employers into the implementing regulations for the six WIOA core programs. In this related rulemaking, the Department of Labor (DOL or the Department) is proposing to incorporate the same definition of the effectiveness in serving employers performance indicator into regulations for title I non-core programs: the Indian and Native American (INA) programs, the Job Corps program, the YouthBuild programs, and the National Farmworker Jobs Program (NFJP).
Interested persons are invited to submit written comments on the proposed rule on or before November 14, 2022.
You may submit comments, identified by Docket No. ETA-2022-0005 and Regulatory Identification Number (RIN) 1205-AC08, through the Federal eRulemaking Portal:
Please be advised that the Department will post all comments received that relate to this notice of proposed rulemaking (NPRM) without changes to
Because of the direct relationship between this proposed rule and the
Heidi Casta, Acting Administrator, Office of Policy Development and Research, U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210, Telephone: 202-693-3700 (voice) (this is not a toll-free number), 1-877-872-5627, or 1-800-326-2577 (telecommunications device for the deaf).
President Barack Obama signed WIOA into law on July 22, 2014. WIOA, the first legislative reform of the public workforce system in more than 15 years, superseded the Workforce Investment Act of 1998 and amended the Wagner-Peyser Act and the Rehabilitation Act of 1973. WIOA reaffirmed the role of the customer-focused one-stop delivery system, a cornerstone of the public workforce system, and enhanced and increased coordination among several key employment, education, and training programs. The law also includes a common performance accountability system, consisting of six statutory primary indicators of performance, applicable to all WIOA core programs: adult, dislocated worker, and youth programs under title I of WIOA; the Adult Education and Family Literacy Act (AEFLA) program under title II; the Employment Service (ES) program authorized under the Wagner-Peyser Act as amended by WIOA title III; and the Vocational Rehabilitation (VR) program authorized under title I of the Rehabilitation Act as amended by WIOA title IV. WIOA also required that the six statutory primary indicators of performance apply to four WIOA title I, DOL-administered non-core programs: INA programs (WIOA sec. 166(e)(5)), the NFJP (WIOA sec. 167(c)(2)(C)), Job Corps (WIOA sec. 159(c)(1)), and YouthBuild (WIOA sec. 171(f)) (hereinafter “title I non-core programs”).
Other DOL-administered WIOA title I non-core programs and projects (
In WIOA, Congress directed the Department to issue regulations implementing statutory requirements to ensure that the public workforce system operates as a comprehensive, integrated, and streamlined system in order to provide pathways to prosperity and continuously improve the quality and performance of its services to job seekers and employers. On August 19, 2016, the Department issued the
Under WIOA, there are six primary indicators of performance that apply to the core programs and the title I non-core programs authorized under WIOA. The statute defines five of the six performance indicators. However, the statute did not specify how effectiveness in serving employers should be measured. Instead, WIOA directed the Departments to develop a definition for the effectiveness in serving employers performance indicator (WIOA sec. 116(b)(2)(A)(iv)).
As detailed later in this NPRM, that pilot, as well as a study of the results from the pilot, are now complete. The Departments are engaging in two rulemakings to incorporate into the WIOA regulations a proposed standard definition of the performance indicator for effectiveness in serving employers. This proposed definition is meant to apply to both WIOA core programs—which are addressed in the concurrently published
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C) (NFJP), and 171(f) (YouthBuild) specify that performance for these title I non-core programs must be assessed using the primary indicators of performance for WIOA core programs. In this proposed rule, the Department is proposing to codify the approach for evaluating a program's effectiveness in serving employers. When finalized, this rulemaking would result in the codification of all the primary performance indicators for these programs—including the effectiveness in serving employers indicator—just as with the WIOA core programs.
Section 677.155 sets forth the primary indicators by which the performance of core programs is evaluated, as required by WIOA sec. 116(b)(2)(A)(i). These primary indicators of performance apply to the core programs described in WIOA sec. 116(b)(3)(A)(ii), as well as to the title I non-core programs. These primary indicators of performance create a common language shared across the programs' performance metrics, support system alignment, enhance programmatic decision making, and help participants make informed decisions related to training. Sections 116(b)(2)(A)(i)(VI) and (iv) of WIOA require the Secretaries of Labor and Education to jointly develop and establish the sixth performance indicator—effectiveness in serving employers—after consultation with representatives of State and local governments, business and industry, and other interested parties.
In the Joint Effectiveness in Serving Employers NPRM, the Departments are proposing to define the effectiveness in serving employers performance indicator in § 677.155(a)(1)(vi) as the percentage of participants with wage records who exited a program and were employed by the same employer in the second and fourth quarters after exit and specifies that this is a statewide indicator reported by one core program on behalf of all six core programs in the State. The Department is proposing this is same language for the WIOA title I non-core programs in this NPRM; however, the statewide aspect of the definition in the proposed Joint Effectiveness in Serving Employers NPRM would not apply to WIOA title I non-core programs. The Department seeks comment in this NPRM on how the proposed definition of effectiveness in serving employers performance indicator would impact the title I non-core programs.
Prior to selecting this single approach to propose, the Departments selected three approaches for measuring effectiveness in serving employers to be piloted by WIOA core programs. The Departments assessed the use of each of the three approaches with a focus on minimizing employer burden and using information that would provide an accurate picture of how well the public workforce system serves employers.
Under the guidance of the Departments,
The Departments assessed the pilot through a Department of Labor contract that resulted in a final report titled
The study authors identified strengths for the Repeat Business Customer approach, including that it serves as a proxy for employer satisfaction. In the study, the authors also identified weaknesses in the Repeat Business Customer approach, including that it: (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a statistical adjustment model to mitigate the weaknesses and improve implementation and interpretation.
The study did not identify any significantly advantageous alternatives to defining the effectiveness in serving employers performance indicator outside of the three proposals (Executive Summary, pp. xx-xxi).
Nevertheless, the Departments identified the following advantages regarding the Retention with the Same Employer definition of the effectiveness in serving employers performance indicator:
•
•
•
Of the three approaches piloted with the States, Retention with the Same Employer is the least burdensome for both States and employers, as noted in the Joint WIOA Final Rule regulatory impact analysis (RIA) (81 FR 55792, 55968). DOL gives particular weight to reporting burden, especially for the competitive grantees with generally less reporting capacity than States, in order to allow grantees to focus on services and improve the accuracy and completeness of the data. However, the Department acknowledges that the limitations for Retention with the Same Employer could include the unintended consequences that this approach may be at odds with an employee seeking a higher paying job or employment benefits, and the possibility that the performance outcome for this indicator might not be the result of an employer receiving a service from the workforce development system. Prioritizing the advantages discussed above (
Although the four WIOA title I non-core programs in this rulemaking—Job Corps, INA, NFJP, and YouthBuild—did not participate in the core program pilot, these title I non-core program fund recipients (
Under this proposed rule, the WIOA title I non-core programs would be subject to the same data collection and reporting requirements as they have been under TEGL No. 14-18. The TEGL specified that, starting in Program Year (PY) 2018 (or the point at which wage matching data becomes available to the program), the Job Corps, INA, NFJP, and YouthBuild programs were to begin tracking the effectiveness in serving employers performance indicator using the Retention with the Same Employer definition. Consistent with related guidance issued in PYs 2016, 2017, and 2018,
As discussed above, the Department has concluded that the benefits of this proposed performance indicator definition with regard to the core programs—that, among other things, it places a low burden on the programs and employers, has a stable method of collection through wage records, and demonstrates a level of success for WIOA customers—are also applicable to the title I non-core programs. Using the proposed Retention with the Same Employer definition of the effectiveness in serving employers indicator, which would be the same definition used to assess the core programs, has the advantage of assessing performance consistently across the WIOA programs. This is consistent with one of the central purposes of WIOA: “[t]o support the alignment of workforce investment, education, and economic development systems in support of a comprehensive, accessible, and high-quality workforce development system in the United States.” WIOA sec. 2(2). Additionally, because WIOA applies the effectiveness in serving employers performance indicator to the WIOA core and title I non-core programs, applying the same definition of effectiveness in serving employers for all of these WIOA programs could allow the Department to build a common body of data that can be used to study effectiveness in serving employers across the entire workforce system.
While reporting this performance indicator contributes to the holistic data analysis of the workforce system, the Department recognizes that drawbacks to this proposed definition exist for the title I non-core programs, especially due to the unique nature of programs focused on youth and migrant or seasonal workers. Nevertheless, the Department believes that the benefits of this approach outweigh those drawbacks. Moreover, the Department intends to mitigate these drawbacks, if necessary, by exercising its discretion to place appropriate weight on the effectiveness in serving employers performance indicator. Title I non-core programs that serve youth, for example, focus on employment, career readiness, retention in education, and life skills to support youth participants in obtaining academic and career skills necessary to be successful in the job market, and success for youth is more likely to include progression in jobs. Recognizing the unique circumstances title I non-core programs may face, the Department expects variability in the reported outcomes from program to program,
It should be kept in mind that the effectiveness in serving employers performance indicator is unique among all other indicators in that it is employer-focused. Employers are critical partners with title I non-core programs in providing quality services and employment opportunities to program participants.
While WIOA does require an effectiveness in serving employers indicator to be applied to the title I non-core programs that are the subject of this rulemaking, the Department is soliciting comments to better inform implementation of the effectiveness in serving employers performance indicator for these programs, particularly those currently undergoing transition to the Grantee Performance Management System (GPMS). The Department is particularly interested in hearing from the regulated community regarding challenges that they might face in implementing this proposed definition of the effectiveness in serving employers performance indicator; challenges they have faced under TEGL No. 14-18, which serves as the basis for how the performance indicator is proposed to be defined in this NPRM; experiences they have had in considering alternate ways to measure effectiveness in serving employers; and other definitions that might be more suitable.
Part 684 governs the INA programs authorized under WIOA sec. 166, including programs for Native American youth (INA Supplemental Youth Services). The INA programs are intended to support employment and training activities for INA program participants in order to develop more fully academic, occupational, and literacy skills and to serve unemployed and low-income INA populations seeking to achieve economic self-sufficiency consistent with the goals and values of the particular communities. Where active, INA programs are required one-stop center partners. The Department administers these programs to maximize Federal commitment to support the growth and development of INAs and their communities as determined by representatives of such communities while meeting the applicable statutory and regulatory requirements.
WIOA sec. 166(h)(2) requires the Department to reach an agreement with Tribal Governments—and the respective entities administering the programs—as to the levels of performance required for each core indicator, including an effectiveness in serving employers performance indicator. The Department is also required to work with the Native American Employment and Training Council (NAETC) to develop a set of performance indicators and standards for the INA adult and youth programs in addition to the primary indicators used to measure performance (WIOA sec. 166(h)(1)(A)).
Beginning with PY 2018, ETA has applied the effectiveness in serving employers performance indicator to INA adult grants as it is described in TEGL No. 14-18, using the Retention with the Same Employer definition of the performance indicator. Specifically, on March 25, 2019, TEGL No. 14-18, Attachment 2 provided that the definition for effectiveness in serving employers performance indicator for INA program reporting purposes would be consistent with the Retention with the Same Employer approach applicable to DOL-administered WIOA title I non-core programs and described in Appendix I of the TEGL. On November 20, 2019, the ICR approved under OMB Control Number 1205-0521 formally established for INA programs the calculation of effectiveness in serving employers and the collection of required elements for the effectiveness in serving employers performance indicator. The cohort of INA adult program participants who exited after July 1, 2020, is the first that may have effectiveness in serving employers data collected, which will be compiled and analyzed in summer 2022.
For the INA Supplemental Youth Services program, the DOL WIOA Final Rule and TEGL No. 14-18 both acknowledged the significant challenges in implementing the performance indicators in WIOA sec. 116(b)(2)(A)(ii). In implementing these performance indicators in TEGL No. 14-18, the Department gave consideration as to how youth performance indicators can be implemented in a way that is realistic and feasible for INA program grantees while also implementing the requirements in WIOA. INA Supplemental Youth Services program participants will be reported once the INA youth case management system modernization has been completed, at which time it will be at least six additional quarters until the first data on effectiveness in serving employers will be available. INA grantees will eventually report on this performance indicator, but given the complexity of aligning data elements and building new systems to report such data, the Department is using the transition authority found in WIOA sec. 503(b) to work co-operatively with grant program organizations to transition to reporting of the information over time.
In 2021, as part of the development of this proposed rule, the Department held two events
If this rulemaking is finalized as proposed, the Department intends to work with INA program grantees to mitigate these concerns. First, INA program grantees' services to participants also are measured and assessed through the other five WIOA primary indicators of performance, and the Department recognizes the importance of these indicators in assessing the performance of INA program grantees. The effectiveness in serving employers performance indicator, unlike the other indicators, which are focused on program participants, focuses on how the WIOA programs are serving employers. As explained above, the proposed performance indicator definition of Retention with the Same Employer is one metric by which to ascertain how employers are being served by these programs. Second, the Department acknowledges and understands the challenges related to reporting for INA program grantees and is working to ensure that all INA program grantees have the systems and resources needed to report the information required for this performance indicator. Third, the Department acknowledges the concerns of Tribal communities and their unique needs. WIOA makes provision for the Department to negotiate additional performance indicators and standards taking into account the needs of participants and the economic circumstances of the communities INA program grantees serve. See WIOA sec. 166(h)(1). The Department will negotiate these additional performance indicators keeping these considerations in the forefront of the negotiations process. INA program grantee performance also is assessed based on these outcomes. Effectiveness in serving employers is not the only metric for assessing INA program grantee performance.
While the Department acknowledges the concerns that have been expressed by INA grantees during the Tribal consultation for this proposed rule regarding application of the effectiveness in serving employers to INA adult and youth programs and will work to mitigate the issues such concerns raise, we note that WIOA requires the performance of these programs to be measured using the WIOA sec. 116 six statutory indicators of performance, including effectiveness in serving employers. Specifically, WIOA sec. 166(h)(2) requires the Secretary to reach agreement on the levels of performance for each of the primary indicators of performance described in WIOA sec. 116(b)(2)(A), which includes the effectiveness in serving employers indicator.
Further, as explained above, the benefits of defining this measure using Retention with the Same Employer, including that it minimizes reporting burdens for INA program grantees, outweigh the drawbacks, as well as providing more benefits than the use of either of the other performance indicator definitions piloted by the core programs. To fulfill the intent of WIOA's common performance accountability system, the Department is proposing to define effectiveness in serving employers for the INA programs using the Retention with the Same Employer approach so that the Department can measure effectiveness in serving employers consistently across core programs and the title I non-core programs.
Additionally, the Department notes that WIOA sec. 166(i)(3) and the WIOA regulations at 20 CFR part 684 subpart I allow the Department to waive requirements, including performance requirements, that are inconsistent with the specific needs of INA grantees. Based on consultation with the NAETC, the Department issued guidance TEGL No. 04-19, “Waiver Authority for the INA Program and Implementation of Additional Indicators of Performance,”
Section 684.460(a) sets out the performance indicators that apply to INA youth programs, including an indicator of the effectiveness of serving employers—specifically in paragraph (a)(6)—as established under WIOA sec. 116(b)(2)(A)(iv). This NPRM proposes to change the language currently found in paragraph (a)(6) to align with the effectiveness in serving employers performance indicator language proposed at § 677.155(a)(1)(vi) in the Joint Effectiveness in Serving Employers NPRM. Specifically, proposed § 684.460(a)(6) would define the required effectiveness in serving employers performance indicator as the percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
Section 684.620(a) lists the performance indicators used to evaluate the INA programs, including an effectiveness in serving employers performance indicator. Like the proposed changes to § 684.460(a)(6), the Department proposes changing the existing language at § 684.620(a)(6) to define the required effectiveness in serving employers performance indicator as the percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit. This definition of effectiveness in serving employers aligns with the effectiveness in serving employers performance indicator language proposed at § 677.155(a)(1)(vi) in the Joint Effectiveness in Serving Employers NPRM.
Part 685 establishes regulations for NFJP, authorized in title I, subtitle D of WIOA. The NFJP is a nationally directed, locally administered program of services for migrant and seasonal farmworkers (MSFWs) and their dependents. Grant recipients help program participants acquire new skills to either stabilize or advance their agricultural careers or obtain employment in a new industry, as well as working to meet the critical need of safe and sanitary permanent and temporary housing for farmworkers and their families.
The NFJP would be impacted by the proposed addition of the definition of the effectiveness in serving employers performance indicator in 20 CFR part 677. Section 167(c)(3) of WIOA (29 U.S.C. 3222) requires the Department to use the six WIOA primary indicators of performance, including the effectiveness in serving employers performance indicator, to assess the performance of the NFJP. In the DOL WIOA Final Rule, the Department implemented this requirement in 20 CFR 685.400(a) and (b), which states that NFJP grantees providing career services and training use the indicators of performance described in WIOA sec. 116(b)(2)(A). NFJP housing grantees, which provide housing assistance rather than training and employment placement services, are required to report a different set of performance indicators as defined in 20 CFR 685.400(c), specifically the total number served of eligible MSFWs, other individuals, eligible MSFW families, and other families. Therefore, if finalized, the proposed definition of the effectiveness in serving employers performance indicator in 20 CFR part 677 in the Joint Effectiveness in Serving Employers NPRM would apply to NFJP career services grantees but not housing grantees, although it would have no noticeable change to procedures for career services grantees as they already report this information in accordance with TEGL No. 14-18. Beginning with PY 2018, NFJP career services grants have applied the effectiveness in serving employers performance indicator as it is described in TEGL No. 14-18, using the Retention with the Same Employer definition of the performance indicator. However, the third quarter of PY 2020 was the first quarter where NFJP generated quarterly performance reports in WIPS with the effectiveness in serving employers performance indicator. No changes to the regulatory text at 20 CFR part 685 are necessary to implement this change, as the regulations currently state that the Department uses the indicators of performance described in WIOA sec.116(b)(2)(A) and do not state a definition directly.
Part 686 establishes regulations for the Job Corps program, authorized in title I, subtitle C of WIOA. Job Corps is a no-cost education and career technical training program administered by the Department, which includes 121 Job Corps centers across the United States. The program aims to help young people—ages 16 to 24—gain academic credentials and career technical training skills and secure quality employment.
Job Corps historically has used post-separation surveys to capture post-program employment results. Job Corps' current surveys (OMB Control Number 1205-0426) are administered to participants immediately following the second and fourth quarters after exit and capture information related to whether they are employed or in an educational or training program during those quarters and if they have attained any additional certifications or credentials after exit from the program. In PY 2018, Job Corps revised the reporting periods in the post-separation surveys to replace program-specific definitions of the second and fourth quarters after exit with the same definitions used by other DOL employment and training programs. This definitional shift created alignment with quarterly wage records and facilitated calculation of common exit and outcomes across WIOA programs. With this change in definition, Job Corps has been able to apply the effectiveness in serving employers performance indicator as it is described in TEGL No. 14-18, using the Retention with the Same Employer definition of the performance indicator. While the post-separation surveys are a supplemental data source for reporting on the primary indicators of performance, Job Corps did not gain access to wage record matches, the primary data source, until the fourth quarter of PY 2020. All reported outcomes for Job Corps prior to this period were based solely on the supplemental data source. Job Corps began certifying its program results in WIPS for all the primary measures of performance, including the Retention with the Same Employer indicator, in the first quarter of PY 2020. Starting with the fourth quarter of PY 2020, Job Corps obtained quarterly wage record matches and, combined with the supplemental data from the surveys, has been able to report fully on the primary measures of performance, including the Retention with the Same Employer indicator.
Section 686.1010 lists the primary indicators used to measure the performance of Job Corps centers, which includes the effectiveness in serving employers performance indicator. The effectiveness in serving employers performance indicator specifically applies to Job Corps center operators and career transition service providers. The Department proposes to change the existing language found at § 686.1010(f) to align with the effectiveness in serving employers performance indicator language proposed at § 677.155(a)(1)(vi) in the Joint Effectiveness in Serving Employers NPRM. Specifically, proposed § 686.1010(f) would define the required effectiveness in serving employers performance indicator as the percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
Part 688 establishes regulations for the YouthBuild programs, authorized in title I, subtitle D of WIOA. YouthBuild is a pre-apprenticeship program that provides educational and job training opportunities for at-risk youth (ages 16-24) who have previously dropped out of high school. Program participants learn vocational skills focused on the construction industry, as well as other in-demand industries including healthcare, information technology, and hospitality. Participants earn their high school diploma while splitting time between the vocational training work site and the classroom, as well as preparing for postsecondary training opportunities, such as Registered Apprenticeships, college, and eventual employment. Community service is required of participants, including through construction and rehabilitation of affordable housing for low-income and homeless families, often in their own neighborhoods. YouthBuild programs include mentoring, follow-up education, employment, and personal counseling services as support systems for program participants as well. YouthBuild grants include a 4-month planning period and run on a cohort model, which spans from 6 to 12 months.
On March 25, 2019, TEGL No. 14-18, Attachment 11, provided that the definition for the effectiveness in serving employers performance
Section 688.400 lists the primary indicators used to measure the performance of YouthBuild programs, which also includes a performance indicator for effectiveness in serving employers. This NPRM proposes to codify current practices by replacing existing language in § 688.400(f) with language that aligns with the effectiveness in serving employers performance indicator language proposed at § 677.155(a)(1)(vi) in the Joint Effectiveness in Serving Employers NPRM. Specifically, proposed § 688.400(f) would define the required effectiveness in serving employers performance indicator as the percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
Under E.O. 12866, OIRA determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. See 58 FR 51735 (Oct. 4, 1993). Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Id. This proposed rule is a significant regulatory action, although not an economically significant regulatory action under sec. 3(f) of E.O. 12866. Accordingly, OMB reviewed this proposed rule.
E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where 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.
Section IV.A.2 provides a summary of the results of the RIA. Section IV.A.3 describes the need for the proposed rule, and Section IV.A.4 describes the process used to estimate the costs and cost savings of the proposed rule and the general inputs used, such as wages and number of affected entities. Section IV.A.5 explains how the provisions of the proposed rule would result in quantifiable costs and cost savings and presents the calculations the Department used to estimate them. In addition, Section IV.A.5 describes the qualitative benefits of the proposed rule. Section IV.A.6 summarizes the estimated first-year and 10-year total and annualized costs, cost savings, net costs, and transfer payments of the proposed rule. Finally, Section IV.A.7 describes the regulatory alternatives considered when developing the proposed rule.
The Department estimates that the proposed rule would result in costs and qualitative benefits. As shown in Exhibit 1, the proposed rule is expected to have a one-time cost of $41,551. The Departments estimate that the proposed rule would result in an annualized net quantifiable cost of $5,916 at a discount rate of 7 percent and expressed in 2020 dollars.
The cost of the proposed rule is associated with rule familiarization for all 121 Job Corps centers and 1 career transition service provider for a total of 122 Job Corps entities, 53 NFJP career service and training grantees, 69 INA youth grantees, 104 INA adult grantees, and 216 YouthBuild grantees.
The Department cannot quantify the benefits of the proposed rule; therefore, Section IV.A.5 (Subject-by-Subject Analysis) describes the benefits qualitatively.
This proposed rulemaking is necessary to complete implementation of the performance accountability requirements as discussed in the Joint WIOA Final Rule and required by statute. WIOA included a common performance accountability system, consisting of six statutory primary indicators of performance, applicable to all WIOA core programs: adult, dislocated worker, and youth programs under title I of WIOA; the AEFLA program under title II; the ES program authorized under the Wagner-Peyser Act as amended by WIOA title III; and the VR program authorized under title I of the Rehabilitation Act, as amended by WIOA title IV. WIOA also required that the six statutory primary indicators of performance apply to four WIOA title I, DOL-administered non-core programs: INA, NFJP, Job Corps, and YouthBuild (“title I non-core programs”). The
The Department estimated the costs of the proposed rule relative to the existing baseline. The Department determined that the proposed rule would result in no change from the baseline for the title I non-core programs. As a result, the Department estimates only the costs of rule familiarization for the title I non-core programs.
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C) (NFJP), and 171(f) (YouthBuild) specify that performance for these title I non-core programs must be assessed using the WIOA sec. 116 primary indicators of performance for WIOA core programs. In this proposed rule, the Department is codifying the approach for evaluating a program's effectiveness in serving employers, as put into practice through previously issued guidance
All title I non-core programs, except the INA Supplemental Youth Services program, are able to report the Retention with the Same Employer definition of effectiveness in serving employers performance indicator, as required in TEGL No. 14-18, through WIPS or GPMS. Unlike the other title I non-core programs, the INA Supplemental Youth Services program is not currently reporting, and will not immediately be able to report, the effectiveness in serving employers performance indicator. The INA Supplemental Youth Services case management system modernization has not been completed at the time of this rulemaking; therefore, INA youth grantees will, for a period of time, use WIOA transition authority with regard to collecting and reporting on WIOA performance indicators, including the proposed effectiveness in serving employers performance indicator. The Department is planning, independent of this rulemaking, to build a new case management system for INA youth grantees that will provide for the collection and reporting of the effectiveness in serving employers performance indicator. Therefore, this proposed rule does not impose any new cost associated with the case management system. When the case management system is built, the INA youth grantees will use it to collect and report the outcomes for the effectiveness in serving employers performance indicator. The use of the new system to report the effectiveness in serving employers performance indicator would impose a de minimis cost for the INA youth grantees. When the INA Supplemental Youth Services case management system is complete, the INA youth program grantees would face a de minimis cost associated with reporting the effectiveness in serving employers performance indicator in the new system.
Exhibit 2 presents the number of entities the Department expects the proposed rule to affect. The Department provides these estimates and uses them to calculate the cost of rule familiarization for the title I non-core programs.
In Section IV.A.5 (Subject-by-Subject Analysis), the Department presents the costs, including labor, associated with the proposed rule. Exhibit 3 presents the hourly compensation rates for the occupational categories expected to experience a change in level of effort (workload) due to the proposed rule. We use the Bureau of Labor Statistics (BLS) mean hourly wage rate for local government employees.
The Department's analysis below covers the estimated cost of the proposed rule.
The following sections describe the costs of the proposed rule.
If the proposed rule is finalized, INA, YouthBuild, NFJP, and Job Corps programs would need to familiarize themselves with the new regulation. Consequently, this would impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization for INA, YouthBuild, NFJP, and Job Corps programs, the Department multiplied the estimated number of management analysts (1) by the time required to read and review the rule (1 hour), and by the applicable hourly compensation rate ($73.67/hour). We multiplied this result by the number Job Corps active centers (122), NFJP grantees (53), INA Youth program grantees (69), INA Adult program grantees (104), and the number of YouthBuild grantees (216). This calculation yields $41,551 in one-time labor costs for Job Corps, NFJP, INA Youth, and INA Adult programs to read and review the rule. Over the 10-year period of analysis, these estimated one-time costs result in an average annual cost of $4,155 undiscounted, or $4,871 and $5,916 at discount rates of 3 and 7 percent, respectively.
The Department cannot quantify the proposed rule's benefits associated with improving the title I non-core programs' effectiveness in serving employers. Measuring effectiveness in serving employers allows title I non-core programs to set goals, monitor, and learn how to serve employers more effectively.
The Department cannot quantify these estimated benefits because we do not have quantitative data on how the effectiveness in serving employers performance indicator has influenced program implementation and how much it would influence future policies.
Requiring the calculation and reporting of Retention with the Same Employer as the effectiveness in serving employers performance indicator would make it easier to compare WIOA title I non-core programs' effectiveness in serving employers performance across grant programs. Retention with the Same Employer demonstrates a continued relationship between the employer and participants who have exited WIOA programs. While many circumstances can have an impact on an employer's retention of employees, an indication that an employee is still working for the same employer in both the second and fourth quarters after exiting from a WIOA program demonstrates a level of success for both parties, as retention of an employee reduces the costs to the employer associated with employee turnover and retraining. Thus, reporting Retention with the Same Employer can help inform design and implementation of program services to reduce job turnover and improve employer-employee match quality. Improved matching and reduced turnover allow employees and employers to operate closer to their productive potential and can make it more worthwhile for employers to invest in training its employees and for employees to invest in learning employer-specific skills.
The Department estimates the total net cost of the proposed rule at $41,183 at a discount rate of 7 percent. The Department estimates the annualized net cost of the proposed rule at $5,864 at a discount rate of 7 percent. Exhibit 4 summarizes the estimated cost of the proposed rule over the 10-year analysis period.
The Department considered two alternatives to the proposed definition of the effectiveness in serving employers performance indicator. First, the Department considered requiring use of the Employer Penetration pilot approach, which reports the percentage of employers using services out of all employers in the State. This approach would have required counts of services provided to employers requiring States and local areas to report unique counts of employer establishments receiving services through WIOA's programs. Employer Penetration would require a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Employer Penetration would have the benefit of capturing the extent to which employers
The Department considered a second regulatory alternative that would require the use of the Repeat Business Customer approach to the effectiveness in serving employers performance indicator, which reports the percentage of employers receiving services in a year who also received services within the previous 3 years. This approach to the effectiveness in serving employers measure requires counts of services provided to employers through WIOA's programs. Repeat Business Customer requires a more data-intensive analysis than the proposed approach of Retention with the Same Employer. Repeat Business Customer captures the extent to which employers within a State can find workers and the employer's level of satisfaction with the public workforce system services. The Department, in an Urban Institute study, found weaknesses in this pilot approach including that it: (1) may provide a disincentive to reach out to new employers; (2) is subject to variation in industry and sector economic conditions; and (3) may require a statistical adjustment model to mitigate the weaknesses and improve implementation and interpretation.
The Department prefers the proposed approach of requiring the use of Retention with the Same Employer because it has data more readily available and, therefore, it is less burdensome. The Retention with the Same Employer approach better aligns with workforce system goals of matching employers with job seekers and reducing turnover without the weaknesses associated with the other two approaches to defining the effectiveness in serving employers performance indicator. In addition, because title I non-core programs are already required to report the Retention with the Same Employer measure, the two alternative measures would impose new costs to affected entities associated with collecting data, calculation of, and reporting the alternative measure.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The Department finds that this proposed rule would not have a significant economic impact on a substantial number of small entities. Based on this determination, the Department certifies that this proposed rule does not have a significant economic impact on a substantial number of small entities. This finding is supported, in large measure, by the fact that small entities are already receiving financial assistance under WIOA. In addition, the calculated cost of this rulemaking is a one-time per-entity cost of $73.67 associated with rule familiarization and would therefore have a de minimis impact on any on particular entity.
This proposed rule can be expected to impact small entities within the Job Corps, NFJP, and INA programs. These small entities can be, for example, Tribal or non-profit grantees, including regionally focused entities. The Department has estimated costs that are new to this proposed rule. As discussed in Section IV.A, the calculated cost of this rulemaking is a one-time per-entity cost of $73.67 associated with rule familiarization and would, therefore, have a de minimis impact on any one particular entity. Therefore, the Department certifies that this proposed rule does not have a significant economic impact on a substantial number of small entities.
The Department previously submitted and received OMB approval for the information collection discussed above (OMB Control Number 1205-0521) in Section I, Background and Rulemaking Authority, and Section III, Effectiveness in Serving Employers Performance Indicator for WIOA Title I Non-Core Programs. See ICR Reference Number 202104-1205-003 (OMB Control Number 1205-0521). This NPRM does not modify any of the content in the exiting OMB Control Number 1205-0521.
E.O. 13132 aims to guarantee the division of governmental responsibilities between the National Government and the States and to further the policies of the Unfunded Mandates Reform Act of 1995 (UMRA). Accordingly, E.O. 13132 requires executive departments and agencies to ensure that the principles of federalism guide them in the formulation and implementation of policies. Further, agencies must adhere to constitutional principles, examine the constitutional and statutory authority supporting a regulation that would limit the policymaking discretion of the States, and assess the need for such a regulation. To the extent practicable, agencies must consult State and local officials before implementing any such regulation.
E.O. 13132 further provides that agencies must implement a regulation that limits the policymaking discretion of the States only where there is constitutional and statutory authority for the regulation and it addresses a problem of national significance. For a regulation administered by the States, the National Government must grant the States the maximum administrative discretion possible to avoid intrusive Federal oversight of State administration, and agencies must adhere to special requirements for a regulation that preempts State law. E.O. 13132 also sets forth the procedures that agencies must follow for certain regulations with federalism implications, such as preparation of a summary impact statement.
Accordingly, the Department has reviewed this WIOA-required NPRM and has concluded that the rulemaking has no Federalism implications. This NPRM has no substantial direct effects on States, on the relationships between the States, or on the distribution of power and responsibilities among the various levels of government as described by E.O. 13132. Therefore, the Department has concluded that this NPRM does not have a sufficient Federalism implication to warrant the preparation of a summary impact statement.
UMRA directs agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, as well as the private sector. A Federal mandate is any provision in a regulation that imposes an enforceable duty upon State, local, or Tribal governments, or imposes a duty upon the private sector that is not voluntary.
Following consideration of the above factors, the Department has concluded that this NPRM contains no unfunded Federal mandates, which are defined in 2 U.S.C. 658(6) to include either a “Federal intergovernmental mandate” or a “Federal private sector mandate.” No additional burden related to reporting the effectiveness in serving employers performance indicator is being proposed to be placed on State, local, and Tribal governments, as this information already is being collected and reported on. Furthermore, the reporting is a contingent to receiving Federal program funding. Any associated reporting mandate cannot, therefore, be considered “unfunded.” Because the decision by a private training entity to participate as a provider under a WIOA core program is purely voluntary, the information collection burden does not impose a duty on the private sector that is not voluntarily assumed.
The Departments of Labor and Education reviewed this proposed rule, as well as the Joint Effectiveness in Serving Employers NPRM published concurrently with this NPRM elsewhere in this issue of the
Prior to developing this proposed rule, the Department held two events to consult with INA program grantees and representatives of Tribal institutions about their experiences with the implementation and operation of the effectiveness in serving employers performance indicator. These two events consisted of a town hall meeting attended both in person and virtually and a formal consultation webinar. The town hall, entitled “Town Hall Discussion: Effectiveness in Serving Employers Performance Indicator,” occurred on September 21, 2021, at the 41st National Indian and Native American Employment and Training conference.
At the two events, the Department received feedback from the INA community and the general public that established several areas of interest concerning the definition of the effectiveness in serving employers performance indicator for WIOA programs. These areas of interest are summarized below. The Department did not receive any written feedback through DOL's Tribal consultation email account. The Department received one letter after the consultation period that raised similar issues to those articulated at the consultation event and summarized below. This comment was not considered due to the late nature of its submission, though similar comments made during the feedback sessions were considered.
Many commenters expressed concern about impacts of individuals changing employers for higher wages or different positions. Specifically, several commenters asked how the Retention with the Same Employer definition of the performance indicator would apply to individuals who have continuous employment through the second and fourth quarters, but with different employers. Some commenters expressed concern that this definition of the performance indicator would not consider individuals who advance to better employment opportunities. One commenter expressed concern that the program would be penalized if employees change employers.
Many commenters expressed concern about how temporary jobs, such as seasonal or contract-based employment, would be considered. Specifically, one commenter gave an example of contractor jobs where individuals may not stay with the same employer and instead change from job to job, such as in construction. Additionally, another commenter stated that employers that regularly lay off and then rehire employees would affect outcomes.
A commenter asked if this measure applies to the INA youth program. Another commenter expressed concern about the impact on performance of limited-duration summer employment opportunities for high school students within INA youth programs. The commenter also questioned DOL's willingness to invest in developing a data collection and reporting process for INA youth programs.
Other commenters expressed concern about how seasonal jobs would be addressed and that certain areas have more seasonal employment than other areas do. Another commenter stated that individuals who participate in the program on a short-term basis while serving time with the Department of Corrections and later return to a different State may impact the performance indicator calculation. A different commenter stated that many participating employers primarily provide entry-level positions focused on gaining work experience.
Many commenters inquired about how the performance indicator is calculated. One commenter asked a question in which the sound quality of the audio was not clear. However, the subject-matter expert interpreted the
Many commenters suggested other ways to calculate the performance indicator. Examples provided by one commenter included employer satisfaction surveys, number of employers served, number of repeat employers, and number of job fairs coordinated with employers. Another commenter said they measure success when an employer enquires about recent graduates to fill open positions. A different commenter stated that they understood the options DOL considered for how to measure effectiveness in serving employers to include how well programs have assisted employers in hiring new employees through job fairs, work experience to full‐time hires, pre‐screening of candidates, and individual hiring events for specific employers.
Some commenters had questions and comments about how the performance indicator would specifically impact INA communities. One commenter expressed the need for consideration of all Tribal communities and their unique needs. The commenter stated that measures used for all INA programs must not only satisfy the intent of the performance indicator but also be meaningful, which is part of the purpose of WIOA sec. 166. The commenter also suggested that grantees should establish a work group within the NAETC to develop information to share with Tribal leaders so that they have background and can communicate what these performance indicators would mean for INA programs.
Another commenter cited the DOL-commissioned third-party study of the performance indicator, “Measuring the Effectiveness of Service to Employers,” and questioned why some States with many INA participants were not included in the pilot study. The commenter also asked if any INA WIOA programs were included in the study. Additionally, a commenter said that DOL is seeking support from Tribes on how to measure a performance indicator they may not want.
Many commenters asked questions about the rulemaking process and how the Department decided on the proposed definition of the performance indicator. Some commenters asked if this performance indicator is required. One commenter asked if the performance indicator can be customized based on the grantee's status, for example with different requirements for rural and urban programs. A different commenter asked if DOL would decide after consultation with Tribes whether or not to apply the performance indicator to INA programs. Other commenters asked if the definition of this performance indicator would be permanent or if it would be re-evaluated in the future. Additionally, a commenter asked if they could review the draft rule with others before it is published, when the proposed rule would be published, and when the final rule would take effect.
A commenter asked if other performance indicator definitions have been submitted for consideration, for example from the NAETC. Another commenter stated that grantees with direct employer relationships differ from grantees that work with American Job Centers to facilitate employment for employers. Additionally, a commenter asked how grantees can assist participants who are facing issues at a new employment site, such as being picked on or treated unfairly, and whether it would be appropriate to act as a mediator between the employer and the participant.
The Department appreciates the valuable feedback received through this Tribal consultation process and has considered this feedback carefully in crafting this proposed rule and its planned implementation, such as use of the waiver process outlined in TEGL No. 04-19, “Waiver Authority for the INA Program and Implementation of Additional Indicators of Performance,” and discussed in Section III.A of this document. The Department invites and encourages submission of public comments that provide further information, including detailed recommendations for program-specific alternatives for the effectiveness in serving employers performance indicator, so that it may take this information under further consideration when making determinations regarding a final rule.
Employment, Grant programs—labor, Indians, Reporting and recordkeeping requirements.
Employment, Grant programs—labor, Job Corps.
Employment, Grant programs—labor, Youth, YouthBuild.
For the reasons discussed in the preamble, the Department of Labor proposes to amend 20 CFR parts 684, 686, and 688 as follows:
Secs. 134, 166, 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(a) * * *
(6) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
(a) * * *
(6) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(f) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
(f) The percentage of participants with wage records in the second quarter after exit who were employed by the same employer in the second and fourth quarters after exit.
Bureau of Safety and Environmental Enforcement, Interior.
Proposed rule.
The Department of the Interior (DOI or Department), through the Bureau of Safety and Environmental Enforcement (BSEE), is proposing to revise certain regulatory provisions published in the 2019 final well control rule for drilling, workover, completion, and decommissioning operations. BSEE is proposing these revisions to clarify blowout preventer (BOP) system requirements and to modify certain specific BOP equipment capability requirements. This proposed rule would provide consistency and clarity to industry regarding the BOP equipment and associated operational requirements necessary for BSEE review and approval and would further ensure operations are conducted safely and in an environmentally responsible manner.
Send your comments on this proposed rule to BSEE on or before November 14, 2022. BSEE may not consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see
You may submit comments on the rulemaking by any of the following methods. Please use the Regulation Identifier Number (RIN) 1014-AA52 as an identifier in your message.
•
•
•
For questions, contact Kirk Malstrom, Regulations and Standards Branch, (202) 258-1518, or by email:
This rulemaking would revise certain regulatory provisions that were published in the 2019 final rule entitled “Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control Revisions,” 84 FR 21908 (May 15, 2019) (2019 WCR). On January 20, 2021, the President issued Executive Order (E.O.) 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) and the accompanying “President's Fact Sheet: List of Agency Actions for Review.” Within the President's Fact Sheet, DOI was specifically instructed to review the 2019 WCR to evaluate potential revisions to promote and protect public health and the environment, among other identified policy goals. This review confirmed that the 2019 WCR contains many provisions that help ensure that federally regulated outer Continental Shelf (OCS) oil and gas operations are conducted safely and in an environmentally responsible manner. Therefore, this proposed rule would address only select provisions that would further promote the President's policies and environmental objectives. At this time, BSEE is proposing a narrowly focused rulemaking to address the identified regulatory requirements to help improve operations that use a BOP, certain BOP capabilities and functionalities, and BSEE oversight of such operations. The proposed rule would:
• Clarify BOP system requirements,
• Remove the option for operators to submit failure data to designated third parties,
• Require accreditation of independent third party qualifications,
• Establish dual shear ram requirements for surface BOPs on existing floating production facilities when an operator replaces an entire surface BOP stack,
• Require ROV open functions as originally required in the 2016 WCR, and
• Require submittal of certain BOP test results if BSEE is unable to witness the testing.
BSEE will continue to evaluate the effectiveness of the 2019 WCR and all BSEE regulations for necessary and appropriate rulemakings in the future.
BSEE's authority for this rule flows from the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331-1356a. OCSLA, enacted in 1953 and substantially revised in 1978, authorizes the Secretary of the Interior (Secretary) to lease the OCS for mineral development and to regulate oil and gas exploration, development, and production operations on the OCS. The Secretary has delegated authority to perform certain of these functions to BSEE.
To carry out its responsibilities, BSEE regulates offshore oil and gas operations to: enhance the safety of exploration for and development of oil and gas on the OCS, ensure that those operations protect the environment, and implement advancements in technology. BSEE also conducts onsite inspections to assure compliance with regulations, lease terms, and approved plans and permits. Detailed information concerning BSEE's regulations and guidance to the offshore oil and gas industry may be found on BSEE's website at:
BSEE's regulatory program covers a wide range of OCS facilities and activities, including drilling, completion, workover, production, pipeline, and decommissioning operations. Drilling, completion, workover, and decommissioning operations are types of well operations that offshore operators
After the
Although the 2016 WCR addressed a significant number of issues that were identified during the analyses of the
Following publication of the 2019 WCR, BSEE continued to engage with stakeholders to gather information to ensure an effective implementation of the governing regulatory requirements. The Department also identified areas for improvement to specific 2019 WCR provisions. Furthermore, on January 20, 2021, the President issued E.O. 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) and the accompanying “President's Fact Sheet: List of Agency Actions for Review.” Within the President's Fact Sheet, DOI was specifically instructed to review the 2019 WCR to evaluate potential revisions to promote and protect public health and the environment, among other identified policy priorities. The Department is proposing a narrowly focused rulemaking to address the identified regulatory requirements to help improve operations that use a BOP, certain BOP capabilities and functionalities, and BSEE oversight of such operations.
BSEE is proposing to revise the following regulations:
BSEE proposes to revise the paragraph (a) by modifying the current requirement that the “BOP system must be capable of closing and sealing the wellbore in the event of flow due to a kick, including under anticipated flowing conditions for the specific well conditions,” to a requirement that the “BOP system must be capable of closing and sealing the wellbore at all times to the well's maximum kick tolerance design limits.” Additional minor, non-substantive wording and grammatical changes are proposed for readability to accommodate this proposed revision.
•
In the 2016 WCR, BSEE promulgated a revised final version of § 250.730(a) requiring the BOP system to be capable of closing and sealing the wellbore “at all times” under “anticipated flowing conditions for the specific well conditions.”
•
In the 2019 WCR, BSEE modified these requirements to codify BSEE guidance developed in July 2016 based on experience implementing the 2016 WCR. In that posted guidance, BSEE clarified that the language of the 2016 WCR required that “the BOP system . . . be designed to shut-in a well that is flowing due to a kick.” A kick is defined as an influx of formation fluids or gas unexpectedly entering the wellbore. Flow from a kick represents the most critical and challenging
Based on BSEE's experience with the implementation of these regulations, BSEE is proposing revisions to the general introductory language to provide additional clarity. Since the 2019 WCR, BSEE continues to receive questions and requests for clarity on this current provision. Therefore, BSEE determined that further clarification is necessary to help reduce any misconceptions or ambiguity. The proposed revisions would restore language referencing the BOP system's capacity to close and seal the wellbore at all times, while clarifying the necessary context of that requirement within the well's maximum kick tolerance design. Kick tolerance is defined as the maximum volume of gas kick influx that can be safely taken into the well bore and circulated out of the well without breaking down the surrounding formation. It is used in well design to plan the position of the casing shoes and ensures that protecting the formation integrity is an integral part of the well barrier design.
The volume of influx can be directly converted to a loss of hydrostatic pressure on the well prior to shut in. This loss of pressure in the wellbore is a mechanism for well flow. Simply stated, the larger the pressure change the greater the flow rate. The impact of the change in pressure is unique to each well condition,
A BOP functions as a mitigation device, designed to backstop other prevention mechanisms to keep a well from progressing to a full blowout; its purpose is not to halt a full blowout once it has commenced. Operators must ensure ram closure time and sealing integrity within the operational and mechanical design limits of the well and equipment. The anticipated flowrate is used to validate that the BOP will function under flowing conditions while maintaining well integrity, as clarified in the proposed text. The proposed clarifications to paragraph (a) further support and reflect the totality of the improved BOP equipment, procedures, and testing, while acknowledging the safe and appropriate purpose and function of the BOP, to clarify these requirements from the 2016 and 2019 WCRs.
BSEE proposes to revise paragraph (c) by removing, throughout the paragraph, the option for submission of failure reporting to a designated third party. BSEE also would revise paragraph (c)(2) to ensure that the operator starts a failure investigation and analysis within 90 days of the failure instead of within 120 days.
•
The 2016 WCR first established the process for failure analysis and reporting. It required that an investigation and a failure analysis be performed within 120 days of the failure to determine the cause of the failure. BSEE also required that certain failure reports be sent to BSEE headquarters to ensure that emerging trends occurring across various Districts and Regions are recognized early and that potentially serious issues can be addressed in a coordinated and uniform way nationwide.
BSEE also noted in the 2016 WCR, however, that the U.S. Bureau of Transportation Statistics (BTS) had developed (with BSEE's assistance) a voluntary near-miss reporting system for OCS facilities and operations at
•
BSEE reevaluated the timeframes set forth in the 2016 WCR for performing the investigation and the failure analysis and determined that certain operations would not be able to meet the original deadlines. For example, investigations of certain failures cannot be commenced safely until active operations progress to the point where necessary actions—like retrieving a subsea BOP to the surface—can be performed safely. Further, BSEE determined that shifting immediately to investigation is not essential when the failure relates to a redundant component that does not affect required BOP functionality. BSEE also recognized that many investigations take a long time and require contracting with specialty engineering firms, who are often located overseas and whose workload may prohibit immediate analysis, as well as transporting components to those firms. Therefore, BSEE revised the timeframes to require that operators start their investigation and their failure analysis within 120 days of the failure and complete the investigation and the failure analysis within 120 days of starting the process.
The 2019 WCR also added provisions allowing BSEE to designate a third party to collect failure data and reports on behalf of BSEE and to require that failure data and reports be sent to the designated third party. These changes in the 2019 WCR codified BSEE guidance on the 2016 WCR posted on the BSEE website at
BSEE has continued to evaluate and analyze the data collected by the BTS system and is actively looking for trends in the failure data. BSEE also conducts investigations into certain incidents to
The proposed revisions to paragraph (c)(2) also would help ensure the operator starts a failure investigation and analysis in a timely manner. Based in part on experience gathered through implementation of the 2019 WCR, BSEE reevaluated the timeframes set forth in the 2019 WCR for performing the investigation and the failure analysis. BSEE determined that most operators can initiate the failure investigation and analysis more quickly without unnecessarily interrupting operations and jeopardizing safety and environmental protection. Accordingly, BSEE proposes to require that operators start the investigation and the failure analysis within 90 days of the failure. This proposed revision also would help limit the potential for evidence to dissipate over time,
BSEE proposes to revise paragraph (b) by adding that an independent third party must be accredited by a qualified standards development organization and that BSEE may review the independent third party accreditation and qualifications to ensure that it has sufficient capabilities to perform the required functions.
•
BSEE introduced for the first time in the 2016 WCR the concept of using BSEE Approved Verification Organizations (BAVOs) to provide certain verifications, certifications, and inspections of BOP systems. BSEE explained that the objective of the use of BAVOs was to help ensure certain BOP equipment was monitored during its entire lifecycle by an independent third party to verify compliance with BSEE requirements, original equipment manufacturer recommendations, and recognized engineering practices. Previously, the independent third parties that performed such functions did not undergo a BSEE approval process. BSEE introduced such a process based on a perception that increased BSEE screening of the third parties would provide greater assurances surrounding the performance of these functions. BSEE stated that it would develop, and make available on its public website, a list of BAVOs—consisting of qualified third party organizations that BSEE determined were capable of performing the functions specified in the regulations—to help BSEE ensure that BOP systems are designed and maintained during their service life to minimize risk. BSEE never published a list of BAVOs, however. In the absence of that action, the 2016 WCR required industry to continue using qualified independent third parties to perform the identified functions to ensure that there was no diminution of the safety and environmental protection under the existing regulations.
•
In the 2019 WCR, BSEE removed all references to BAVOs and, where appropriate, replaced them with references to independent third parties. BSEE based these revisions on information from the Bureau's increased interactions with independent third parties following publication of the 2016 WCR and the successful use of such third parties in lieu of BAVOs in the absence of a published BAVO list. BSEE expected the majority of BAVOs would be drawn from the existing independent third parties, who would continue to conduct the same verifications, certifications, and inspections, yielding little actual change in the implementation of the program. BSEE also clarified the qualifications for independent third parties (
The proposed changes to paragraph (b) would provide an additional layer of assurance that independent third parties are capable of providing the required verifications and certifications and that BSEE may review the independent third party accreditation and qualifications to ensure that capability. These proposed revisions are derived in part from BSEE's increased interaction and experience with independent third party certification and verifications since the 2019 WCR, as well as BSEE's awareness of certain stakeholder concerns about independent third party qualifications. These revisions also would help increase accountability of independent third parties. It is BSEE's continued goal to ensure that independent third parties are properly qualified and have proven competencies to perform all required actions.
BSEE proposes to revise paragraph (b)(1) by adding that an operator also must follow the BOP requirements of § 250.734(a)(1) when replacing an entire surface BOP stack on an existing floating production facility.
•
The 2016 WCR added the requirement that surface BOPs installed on a floating production facility after 2019 must satisfy the dual shear ram requirements in § 250.734(a)(1). BSEE expected industry to be moving toward eventual use of dual shear rams in surface BOPs on new floating production facilities already. However, BSEE explained several practical concerns related to applying the dual shear ram requirement to existing facilities. For example, the dual shear ram requirement, if applied to existing floating production facilities, or facilities under construction or in advanced stages of development, potentially could have negative personnel safety and structural impacts due to the added weight of the dual shear ram equipment and due to the height and structural limits of those facilities. Accordingly, BSEE clarified in the final rule that existing floating production facilities did not need to
BSEE further explained that these provisions reasonably balanced the practical concerns related to requiring dual shear rams on BOPs at existing floating facilities or those to be constructed in the near term, with the importance of improving the capabilities of surface BOPs on such facilities in the longer term. BSEE also explained that existing floating production facilities generally are less likely to have an event requiring a dual shear ram BOP (than,
•
The 2019 WCR revised § 250.733(b)(1) to require that, after April 29, 2021, operators must follow the dual shear ram requirements in § 250.734(a)(1) for new floating production facilities installed with a surface BOP. These revisions were based on comments seeking clarity. Following publication of the 2016 WCR, stakeholders expressed confusion about the requirements in this section that cross-reference the § 250.734 requirements regarding dual shear rams for subsea BOPs, which did not take effect until 2021. BSEE made the compliance dates the same for §§ 250.733(b)(1) and 250.734(a)(1) (
Since the implementation of the 2019 WCR, BSEE has reviewed all existing surface BOP stacks on floating production facilities and evaluated facility limitations for expanding BOP systems to include dual shear rams. Dual shear ram BOPs have one blind shear ram that is able to cut certain equipment in the well (
BSEE proposes to revise paragraph (a)(4) by adding that the operator must have the Remotely Operated Vehicle (ROV) intervention capability to both open and close each shear ram, ram locks, and one pipe ram.
•
The 2016 WCR included requirements that the ROV must be capable of opening and closing each shear ram, ram locks, and one pipe ram, in addition to disconnecting the lower marine riser package (LMRP) under maximum anticipated surface pressure (MASP) conditions. Rams are components on a blowout preventer designed to close and seal the wellbore. There are generally three types or rams: blind, pipe, or shear. A blind shear ram is able to cut certain equipment in the well (
•
The 2019 WCR retained the requirements for ROVs to have full ram closure functions, but removed the requirement for the ROV to be capable of opening the rams. After publication of the 2016 WCR, the API Standard 53 committee clarified the definition of ROV “operate” critical functions to include “close” only and not to include “open.” For the purposes of well control, BSEE primarily focuses on closure of critical components. BSEE took the position that BOP ram closure is more important during a well-control event than ram opening for the purposes of well control. Removal of the open function reduced the required number of equipment alterations to the subsea ROV panel and associated control systems and made the regulatory requirements more consistent with updated provisions of API Standard 53. BSEE acknowledged that removing the ROV open function may limit certain options for well intervention after the well has already been secured; however, it believed technological advancements in well intervention capabilities could eliminate this issue.
Since implementation of the 2019 WCR, BSEE has gained an increased awareness of the importance of intervention capabilities and of alternative technologies. Immediate responses to losses of well control that
For example, having an open function makes it easier for operators to conduct remedial operations following the loss of well control that may be necessary to maintain the security of the well, such as zonal isolation and equipment repair. Also, BSEE is not aware of technological advancements in well intervention capabilities that have eliminated the need for the ROV open function to facilitate these important well maintenance operations. Accordingly, this revision would require that the ROV open function be in place to allow for easier access to open a closed BOP component for well intervention purposes, including operations necessary to maintain the security of the well. BSEE also has reviewed existing subsea BOP capabilities and determined that most subsea BOPs currently incorporate the capability to open the shear rams from the ROV panel. BSEE therefore anticipates that only a minor number of equipment modifications would be necessary by reintroducing this requirement.
BSEE proposes to revise paragraphs (d)(2)(ii) and (d)(3)(iii) by adding the requirement that, if BSEE is unable to witness the testing, the operator must provide the initial test results to the appropriate District Manager within 72 hours after completion of the tests.
•
The 2016 WCR required the operator to contact the District Manager at least 72 hours prior to beginning the initial test for a surface BOP, or the stump test for a subsea BOP, to allow BSEE representative(s) the option to witness the testing. If BSEE representative(s) were unable to witness the testing, the operator was required to provide the test results to the appropriate District Manager within 72 hours after completion of the tests.
•
The 2019 WCR removed the requirement for operators to submit the relevant test results to BSEE when BSEE cannot witness the testing. BSEE stated that the revisions would significantly reduce the number of submittals to BSEE and minimize the associated burden for BSEE to review those submittals, without reducing safety. If BSEE cannot witness the testing, BSEE still has access to the BOP testing documentation upon request pursuant to § 250.746,
Based upon BSEE experience with implementing he 2019 WCR, BSEE has determined that consistent access to this data is necessary for BSEE to ensure BOP safety. Since implementation, BSEE has found it necessary to request this data from operators to verify that the necessary tests were conducted and passed. While the 2019 WCR cited the burden to BSEE from reviewing this data, BSEE has been reviewing the data even without the submission requirement, and its reintroduction will reduce the burden on BSEE from having to request the data. BSEE's experience has led it to determine that any additional burden is necessary to ensure compliance with BOP testing requirements. The burdens on operators from submission of the data are minimal. These revisions also would help BSEE ensure it has continued access to certain BOP testing data necessary to conduct its routine review. In the past, BSEE has utilized the BOP information for further review and investigations and has taken enforcement action as a result of the data review. BSEE retains the requirements for operators to produce certain records upon request and to provide advanced notice at least 72 hours before the testing to allow BSEE the option of sending representatives to witness the testing.
E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the OMB will review all significant rules. To determine if this proposed rulemaking is a significant rule, BSEE had an outside contractor prepare an economic analysis to assess the anticipated costs and potential benefits of the proposed rulemaking. The following discussion summarizes the economic analysis; a complete copy of the economic analysis can be viewed at
Changes to Federal regulations must undergo several types of economic analyses. First, E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of regulatory alternatives and, if regulation is necessary, to select a regulatory approach that maximizes net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Under E.O. 12866, an agency must determine whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that:
BSEE has determined that this proposed rule is not significant within the definition of E.O. 12866 because the estimated annual costs or benefits would not exceed $100 million in any year of the 10-year analysis period and the rule will not meet any of the other significance triggers. Accordingly, OMB has not reviewed this proposed regulation.
BSEE has identified a need to amend the existing well control regulations to ensure that oil and gas operations on the OCS are conducted in a safe and environmentally responsible manner. In particular, BSEE considers the proposed rule necessary to reduce the likelihood of an oil or gas blowout, which can lead to the loss of life, serious injuries, and
After the
Although the 2016 WCR addressed a significant number of issues that were identified during the analyses of the
Since the publication of the 2019 WCR, BSEE has continued engaging with stakeholders to gather information to ensure effective implementation of the regulations. The Department subsequently identified areas for improvements to specific 2019 WCR provisions. Furthermore, on January 20, 2021, the President issued E.O. 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) and the E.O.'s accompanying “President's Fact Sheet: List of Agency Actions for Review.” Within the President's Fact Sheet, DOI was specifically instructed to review the 2019 WCR to evaluate potential revisions to promote and protect public health, safety, and the environment, among other identified policy goals.
BSEE is proposing a narrowly focused rulemaking to address the identified regulatory requirements to help improve operations that use a BOP, certain BOP capabilities and functionalities, and BSEE oversight of such operations. The proposed rule would:
(A) Clarify BOP system requirements,
(B) Remove the option for operators to submit failure data to designated third parties,
(C) Require accreditation of independent third party qualifications,
(D) Establish dual shear ram requirements for surface BOPs on existing floating production facilities when an operator replaces an entire surface BOP stack,
(E) Require ROV open functions as originally required in the 2016 WCR, and
(F) Require submittal of certain BOP test results if BSEE is unable to witness the testing.
BSEE has considered two regulatory alternatives:
(A) Promulgate the requirements contained within the proposed rule.
(B) Take no regulatory action and continue to rely on existing well control regulations in combination with permit conditions, deepwater operations plans (DWOPs), operator prudence, and industry standards.
Alternative 1—the proposed rule—would incorporate recommendations provided by government, industry, academia, and other stakeholders. In addition to addressing concerns and aligning with industry standards, this proposed rule would prudently improve efficiency and consistency of the regulations.
BSEE's economic analysis evaluated the expected impacts of the proposed rule compared with the baseline. The baseline refers to current industry practice in accordance with existing regulations, industry permits, DWOPs, and industry standards with which operators already comply. Impacts that exist as part of the baseline were not considered costs or benefits of the proposed rule. Thus, the cost analysis evaluates only activities, expenditures, and capital investments representing a change from the baseline that would result if the provisions of the proposed rule were finalized. BSEE quantified and monetized the costs, using 2022 data, of all the provisions in the proposed rule determined to result in a change compared to the baseline. These estimated compliance costs are discussed more specifically in the associated full initial regulatory impact analysis, which can be viewed at
BSEE qualitatively assessed the benefits of the proposed rule. The rulemaking would allow BSEE to address stakeholder concerns related to the BOP and well control provisions in 30 CFR part 250 and would provide clarification about regulations in this section. The proposed amendments would have a positive net impact on worker safety and the environment. The benefits include clarification, more timely review of data to facilitate faster response to systemic risks, increased accountability of verification entities to ensure that risks are accurately assessed and verified, improved protection from a blowout, improved ability to manage a blowout, and the assurance that BSEE receives and is able to review BOP testing data to help identify risks.
The analysis assumes an effective date of January 1, 2023, and covers 10 years (2023 through 2032) to ensure it encompasses the significant costs and benefits likely to result from this proposed rule. A 10-year period was used for this analysis because of the uncertainty associated with predicting industry's activities and the advancement of technical capabilities beyond 10 years. It is very difficult to predict, plan, or project costs associated with technological innovation due to unknown technological or business constraints that could drive a product into mainstream adoption or into obsolescence. The regulated community itself has difficulty conducting business modeling beyond a 10-year time frame. Over time, the costs associated with a particular new technology may drop because of various supply and demand factors, causing the technology to be more broadly adopted. In other cases, an existing technology may be replaced by a lower-cost alternative as business needs may drive technological innovation.
Extrapolating costs and benefits beyond this 10-year time frame would produce more ambiguous results and therefore be disadvantageous in determining actual costs and benefits likely to result from this proposed rule. BSEE concluded that this 10-year analysis period provides the best overall ability to forecast reliable costs and benefits likely to result from this proposed rule. When summarizing the costs and benefits, we present the estimated annual effects, as well as the 10-year discounted totals using discount
Table 1 presents the total costs per year of the proposed rule. As can be seen in the table, the estimated costs over the ten-year period are $2.4 million undiscounted, $2.3 million discounted at 3%, and $2.2 million discounted at 7%.
BSEE welcomes comments on this analysis, including potential sources of data or information on the costs and benefits of this proposed rule.
DOI certifies that this proposed rule is unlikely to have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601
The RFA, at 5 U.S.C. 603, requires agencies to prepare a regulatory flexibility analysis to determine whether a regulation would have a significant economic impact on a substantial number of small entities. Further, under the Congressional Review Act, 5 U.S.C. 801
Since publication of the 2019 WCR, BSEE has continued to confer with stakeholders to ensure effective implementation of the regulations. BSEE also identified potential improvements to specific aspects of these provisions. Furthermore, on January 20, 2021, the President issued E.O. 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) and the E.O.'s accompanying “President's Fact Sheet: List of Agency Actions for Review.” Within the President's Fact Sheet, DOI was specifically instructed to review the 2019 WCR to evaluate potential revisions to promote and protect public health, safety, and the environment, among other identified policy goals.
Small entities, as defined by the RFA, consist of small businesses, small organizations, and small governmental jurisdictions. We have not identified any small organizations or small government jurisdictions that the rule would impact, so this analysis focuses on impacts to small businesses (hereafter referred to as “small entities”). A small entity is one that is independently owned and operated and that is not dominant in its field of operation. The definition of small business varies from industry to industry to properly reflect industry size differences.
One of the changes in the proposed rule would have an impact on a substantial number of small entities. The proposed rule would affect all well drilling operators and Federal oil and gas lease holders on the OCS, primarily those working in the Gulf of Mexico. BSEE's analysis also shows that this would include 48 companies that drilled at least one offshore well during the period 2015 to 2021. Of these drilling operators, approximately 20 would be active in each given year. Entities that would operate under the proposed rule are classified primarily under North American Industry Classification System (NAICS) codes 211120 (Crude Petroleum Extraction), 211130 (Natural Gas Extraction), and 213111 (Drilling Oil and Gas Wells). For NAICS classifications 211120 and 211130, the Small Business Administration defines a small business as one with fewer than 1,251 employees; the rest are considered large businesses. BSEE considers that a rule has an impact on a “substantial number of small entities” when the total number of small entities impacted by the rule is equal to or exceeds 10 percent of the relevant universe of small entities in a given industry. BSEE estimates that approximately 83 percent of offshore operators drilling on the OCS are small and that the small entities impacted each year would comprise 34 percent of that universe.
BSEE has estimated the incremental costs for small operators and lease holders in the offshore oil and natural gas production industry. Costs already incurred as a result of current industry practice in accordance with existing regulations, industry permits, DWOPs, and API industry standards with which operators already comply were not considered as costs of this rule because they are part of the baseline.
Only 1 of the proposed provisions would have cost impacts on small entities.
For proposed § 250.737(d)(2)(ii) and (d)(3)(iii), it is estimated that the annual cost per company would be $78.30, which is not a significant impact.
The proposed rule would not conflict with any relevant Federal rules or duplicate or overlap with any Federal rules in any way that would unnecessarily add cumulative regulatory burdens on small entities without any gain in regulatory benefits. However, BSEE requests comments identifying any Federal rules that may duplicate, overlap, or conflict with the proposed rule.
BSEE has considered two regulatory alternatives:
(1) Promulgate the requirements contained within the proposed rule.
(2) Take no regulatory action and continue to rely on existing well control regulations in combination with permit conditions, DWOPs, operator prudence, and industry standards.
Alternative 1—the proposed rule—would incorporate recommendations provided by government, industry, academia, and other stakeholders. In addition to addressing concerns and aligning with industry standards, this proposed rule would prudently improve efficiency and consistency of the regulations.
The potential costs to small entities are believed to be small; however, the risk of safety or environmental accidents for small companies would not necessarily be lower than it would be for larger companies. Offshore operations are highly technical and can be hazardous. Adverse consequences in the event of incidents are similar regardless of the operator's size. The proposed rule would reduce risk for entities of all sizes. Nonetheless, BSEE is requesting comment on the costs of these proposed policies to small entities, with the goal of ensuring thorough consideration and discussion at the final rule stage. BSEE specifically requests comments on the burden estimates discussed above as well as information on regulatory alternatives that would reduce the burden on small entities (
This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by Unfunded Mandates Reform Act (2 U.S.C. 1531
Under the criteria in E.O. 12630, this proposed rule would not have significant takings implications. The rule is not a governmental action capable of interference with constitutionally protected property rights. A Takings Implication Assessment is not required.
Under the criteria in E.O. 13132, this proposed rule would not have federalism implications. This proposed rule would not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role. A federalism assessment is not required.
This proposed rule complies with the requirements of E.O. 12988. Specifically, this rule:
(1) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(2) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
BSEE is committed to regular and meaningful consultation and collaboration with Tribes on policy decisions that have Tribal implications. Under the criteria in E.O. 13175 and DOI's Policy on Consultation with Indian Tribes (Secretarial Order 3317, Amendment 2, dated December 31, 2013), we have evaluated this proposed rule and determined that it has no substantial direct effects on federally recognized Indian Tribes.
This proposed rule contains existing and new information collection (IC) requirements for regulations at 30 CFR part 250, subpart G, and submission to the OMB for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The proposed regulations would establish new and/or revise current requirements in Subpart G,
The following provides a breakdown of the paperwork hour burdens and non-hour cost burdens for this proposed rule.
As discussed in the Section-by-Section analysis above, and in the supporting statement available at
§ 250.730—This section would eliminate text allowing BSEE to designate a third party to receive notices and reports. No burden changes are being proposed.
§ 250.732(b)—This section would add to the current paragraph that BSEE may review independent third party accreditations and qualifications. This would add +10 hours.
§ 250.737(d)(2) and (3)—This section would add the requirement that if BSEE is unable to witness the testing, the operator must provide the initial test results to the appropriate District Manager within 72 hours after completion of the tests. The 2019 WCR provisions
In addition, the PRA requires agencies to estimate the total annual reporting and recordkeeping non-hour cost burden resulting from the collection of information, and we solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components: (1) total capital and startup cost component and (2) annual operation, maintenance, and purchase of service component. Your estimates should consider the cost to generate, maintain, and disclose or provide the information. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Generally, your estimates should not include equipment or services purchased: (1) before October 1, 1995; (2) to comply with requirements not associated with the information collection; (3) for reasons other than to provide information or keep records for the Government; or (4) as part of customary and usual business or private practices.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:
(1) Whether the collection of information is necessary, including whether the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on respondents.
Send your comments and suggestions on this information collection by the date indicated in the
BSEE is analyzing the provisions of the proposed rule in compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C, sec. 515, 114 Stat. 2763, 2763A-153-154).
This proposed rule is not a significant energy action under the definition in E.O. 13211. The rule is not a significant regulatory action under E.O. 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. A Statement of Energy Effects is not required.
We are required by E.O. 12866, E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Administrative practice and procedure, Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Incorporation by reference, Investigations, Oil and gas exploration, Outer Continental Shelf—mineral resources, Outer Continental Shelf—rights-of-way, Penalties, Pipelines, Reporting and recordkeeping requirements, Sulfur.
For the reasons stated in the preamble, the Department of the Interior proposes to amend 30 CFR part 250 as follows:
30 U.S.C. 1751, 31 U.S.C. 9701, 33 U.S.C. 1321(j)(1)(C), 43 U.S.C. 1334.
(a) You must ensure that the BOP system and system components are designed, installed, maintained, inspected, tested, and used properly to ensure well control. The working-pressure rating of each BOP component (excluding annular(s)) must exceed MASP as defined for the operation. For a subsea BOP, the MASP must be determined at the mudline. The BOP system includes the BOP stack, control system, and any other associated system(s) and equipment. The BOP system and individual components must be able to perform their expected functions and be compatible with each other. Your BOP system must be capable of closing and sealing the wellbore at all times to the well's maximum kick tolerance design limits. The BOP system must be capable of closing and sealing without losing ram closure time and sealing integrity due to the corrosiveness, volume, and abrasiveness of any fluids in the wellbore that the BOP system may encounter. Your BOP system must meet the following requirements:
(c) You must follow the failure reporting procedures contained in API Standard 53, (incorporated by reference in § 250.198), and:
(1) You must provide a written notice of equipment failure to both the Chief, Office of Offshore Regulatory Programs (OORP), and the manufacturer of such equipment within 30 days after the discovery and identification of the failure. A failure is any condition that prevents the equipment from meeting the functional specification.
(2) You must start an investigation and a failure analysis within 90 days of the failure to determine the cause of the failure and complete the investigation and the failure analysis within 120 days after initiation. You also must document the results and any corrective action. You must submit the analysis report to both the Chief, OORP and the manufacturer. If you cannot complete the investigation and analysis within the specified time, you must submit an extension request detailing when and how you will complete the investigation and analysis to BSEE for approval. You must submit the extension request to the Chief, OORP.
(3) If the equipment manufacturer notifies you that it has changed the design of the equipment that failed or if you have changed operating or repair procedures as a result of a failure, then you must, within 30 days of such changes, report the design change or modified procedures in writing to the Chief, OORP.
(4) Submit notices and reports to the Chief, Office of Offshore Regulatory Programs; Bureau of Safety and Environmental Enforcement; 45600 Woodland Road, Sterling, Virginia 20166.
(b) The independent third party must be accredited by a qualified standards development organization and must be a technical classification society, a licensed professional engineering firm, or a registered professional engineer capable of providing the required certifications and verifications. BSEE may review the independent third party accreditation and qualifications to ensure that the independent third party has sufficient capabilities to perform the required functions.
(b) * * *
(1) On new floating production facilities installed after April 29, 2021, that include a surface BOP, or when you replace an entire surface BOP stack on an existing floating production facility, follow the BOP requirements in § 250.734(a)(1).
(a) * * *
(d) * * *
Federal Communications Commission.
Request for comment.
In this document, the Federal Communications Commission (FCC) seeks comment through a Notice of Inquiry adopted by the FCC on August 5, 2022, on missions conducting in-space servicing, assembly, and manufacturing (ISAM) that may involve Commission licensing and rules, including the state of the industry, technological readiness, and what steps the Commission might take to facilitate progress and reduce barriers for ISAM missions, including clarifications, updates or modifications of rules.
Comments are due October 31, 2022. Reply comments are due November 28, 2022.
You may submit comments, identified by IB Docket No. 22-271 and IB Docket No. 22-272, by any of the following methods:
Jameyanne Fuller, International Bureau, Satellite Division, 202-418-0945,
This is a summary of the Commission's Notice of Inquiry, FCC 22-66, adopted August 5, 2022, and released August 8, 2022. The full text of the Notice of Inquiry is available at
Interested parties may file comments and reply comments on or before the dates indicated in the
•
•
Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020).
•
The Commission will treat this proceeding as a “permit-but-disclose” proceeding in accordance with the Commission's
This document contains no proposed new and modified information collection requirements.
In this Notice of Inquiry, the Commission seeks comment on in-space servicing, assembly, and manufacturing (ISAM) missions, including possible spectrum allocations and licensing processes of these missions, orbital debris implications of these missions and the potential for ISAM to remediate existing orbital debris, special considerations for ISAM missions taking place beyond Earth's orbit, and what role the Commission should play in regulating these missions to support sustainable growth of this sector of the space industry.
We are starting an effort to promote United States leadership in the emerging space economy. Space activities are rapidly accelerating, resulting in new opportunities in multiple sectors of society. In this Notice of Inquiry, we examine the opportunities and challenges of in-space servicing, assembly, and manufacturing—or “ISAM”—that can support sustained economic activity in space. In particular, we seek comment on the status of ISAM: where the industry is today, how the Commission can best support its sustainable development, and what tangible economic and societal benefits may result from the development of these capabilities.
We believe ISAM activities are poised to transform the space economy. Missions in this category—which can include satellite refueling, inspecting and repairing in-orbit spacecraft, capturing and removing debris, and transforming materials through manufacturing while in space—have the potential to build entire industries, create new jobs, mitigate climate change, and advance our nation's economic, scientific, technological, and national security interests. At the same time, we also recognize that ISAM activities may raise new opportunities and challenges for the sustainability of the outer space environment and the space-based services on which the United States government, businesses, and individuals rely on every day to communicate, navigate, and perform other vital functions. As these capabilities evolve, the norms, rules, and principles that guide outer space activities may also require renewed attention.
This Notice of Inquiry thus seeks to develop a record on where these capabilities are today and the steps needed to promote their development. In particular, we seek comment through this Notice of Inquiry on the regulatory needs related to commercial and other non-governmental ISAM activities and whether such activities could further the Commission's policy goals and statutory obligations. We seek comment on ISAM activities that may involve Commission licensing and rules, on updates or modifications of our rules or licensing processes that might facilitate ISAM activities, on spectrum needs for ISAM missions, and on any regulatory issues presented by ISAM activities beyond Earth's orbit. In addition, we seek comment on space safety issues that may be implicated by ISAM activities, including orbital debris considerations. As part of this inquiry, for the first time, we seek to develop a record not only on efforts to minimize the creation of new debris in connection with ISAM, but on opportunities to leverage these capabilities to clean up existing debris. The information developed in this Notice of Inquiry can help position the United States to realize the critical benefits of ISAM while ensuring space safety and sustainability.
ISAM refers to a set of capabilities that are used on-orbit, in transit, or on the surface of space bodies. Within the category of ISAM, “servicing” includes activities such as use of one spacecraft to inspect another, to dock with other spacecraft and provide support such as maintaining the station in its orbital location in order to extend the period of operations, or to repair or modify a spacecraft after its initial launch. These activities typically include the process of maneuvering close to and operating in the near vicinity of the “client” spacecraft, a set of activities often referred to as rendezvous and proximity operations (RPO). “Servicing” also involves transport of a spacecraft from one orbit to another and debris collection and removal. “Assembly” refers to the construction of a space system using pre-manufactured components, and “manufacturing” is the transformation of raw or recycled materials into components, products, or infrastructure in space.
While many commercial and other non-governmental ISAM activities are still at an early stage, the Commission has played a role in authorizing a number of missions that include technologies relevant for ISAM or offer groundbreaking commercial servicing. Some of these include:
• Licensing of Space Logistics, LLC's Mission Extension Vehicle-1 (MEV-1). This spacecraft has successfully executed the first commercial mission servicing a commercial spacecraft, in this case by docking with and providing station-keeping support to a geostationary orbit (GSO) communications satellite.
• Licensing of Space Logistics, LLC's second Mission Extension Vehicle (MEV-2).
• Granting an experimental license to SpaceIce in October 2020 for a satellite designed to investigate freeze-casting in the microgravity environment.
• Authorizing U.S. earth station communications in November 2021 to support Astroscale Ltd.'s ELSA-d testing of spacecraft capabilities for orbital debris removal.
• Granting an experimental license to NanoRacks LLC in November 2021 for communications with an experimental component attached to the second stage of a SpaceX Falcon 9 launch vehicle, to demonstrate metal-cutting in space.
Additionally, topics related to ISAM capabilities have been raised in other Commission rulemaking proceedings. In the Commission's recent orbital debris proceeding,
Similarly, in the Commission's launch frequency proceeding,
Finally, in June 2022, we considered ISAM operations in our annual regulatory fee proceeding and sought comment on these nascent operations in the context of regulatory fee obligations. Some commenters suggested that creating a separate fee category or categories, along with service rules for OOS and RPO operations, would provide clarity. In the
The Commission's ongoing work related to ISAM has dovetailed with other major federal government action. On April 4, 2022, the White House Office of Science and Technology Policy (OSTP) released the
1. Advance ISAM research and development, including an ecosystem of capabilities to support ISAM such as standards and systems to implement standards.
2. In collaboration with academic and commercial ISAM stakeholders, prioritize expanding ground infrastructure and support the development of space-based infrastructure.
3. Accelerate the emerging ISAM commercial industry through providing a sustained demand signal for ISAM capabilities and increased collaboration between government stakeholders and industry.
4. Promote international collaboration and communication and support the development of voluntary international standards, best practices, guidelines, and norms for ISAM activities.
5. Prioritize environmental sustainability by developing and implementing best practices, collaborating with commercial partners to support cost-effective space debris removal, and developing new climate science approaches.
6. Inspire the future space workforce by collaborating with academic institutions developing ISAM-enabled research, supporting curriculum development, and advocating for apprenticeships to foster industry-academia collaborations.
We seek comment on Commission actions that can address the needs of ISAM activities, including whether there are any regulatory changes the Commission should consider to facilitate ISAM. For example, we ask questions about spectrum needs for ISAM missions, as well as whether there are clarification of or changes to our licensing processes that would support these types of missions. Recognizing the potential benefits of satellite servicing and orbital debris remediation, we also seek comment on the particular needs of these activities and whether they can further Commission policy goals and statutory obligations. In addition, we seek comment on the orbital debris implications and opportunities posed by ISAM missions, in view of the Commission's role in reviewing orbital debris mitigation plans for non-governmental spacecraft.
Generally, we seek comment on the variety of radiofrequency communications links that could be involved in ISAM missions, on potentially relevant international frequency allocations and allocations in the U.S. Table of Frequency Allocations, and on other considerations associated with spectrum licensing. To date, some spacecraft involved in ISAM missions have been licensed under part 25 of the Commission's rules, which generally apply to commercial and other non-experimental operations, while other spacecraft involved in ISAM missions have been licensed under part 5 of the Commission's rules, which addresses experimental licensing. Communications that are not consistent with the U.S. Table of Frequency Allocations and communications pursuant to a part 5 experimental license are authorized on a non-interference basis and cannot claim interference protection from authorized spectrum users.
Given the wide range of activities that could fall within the ISAM category, we seek comment on how to define the scope of “typical” spectrum usage for ISAM missions, including for such functions as OOS and RPO. While different types of ISAM missions will have different spectrum needs, is it possible to define the scope of typical spectrum use for these different types of missions? Are there useful sub-categories that can be identified within ISAM when it comes to spectrum use? What are the overall requirements for spectrum for these ISAM activities? What are the bandwidth requirements? What are the power requirements? To what degree are the needs short-term or episodic, or to what degree are the
We seek comment on relevant frequency allocations. What services, as defined by the ITU Radio Regulations and the Commission's rules, are most critical for ISAM capabilities? We note that in some instances ISAM missions have been supported by communications in the space operations service, which primarily covers telemetry, tracking, and command (TT&C). We seek comment on whether typical usage for ISAM missions could be considered a space operations service as currently defined. We also note the use of sensors and imaging equipment in some ISAM missions, equipment that may have spectrum needs distinct from the typical needs for obtaining TT&C operations of a spacecraft. Are the current non-Federal allocations for space operations or other relevant services adequate to address spectrum needs for ISAM missions? If not, what frequency ranges would be most viable to support these missions based on current technology and mission requirements, and are there satellite allocations in those frequency ranges? Is it reasonable to continue in some instances to authorize communications supporting ISAM capabilities on a non-interference, unprotected basis, particularly where the communications may be critical to conducting an RPO mission for example, or something similar? Are there conditions that could facilitate coordination with incumbent users, such as geographic or temporal limitations, thereby providing some assurance of interference-free use, even where the status of such operations remains inconsistent with an allocation.
Commercial space industry entities have previously observed that additional spectrum may be necessary to support types of missions that would fall under the category of ISAM. These entities also noted that investment has already been made in technologies to support OOS and RPO in some frequency bands. We seek comment on these issues, and on whether there are steps that can facilitate operations to support ISAM capabilities in frequency bands viewed by commercial and other non-governmental entities as compatible with their needs. For example, in frequency bands shared with Federal operations, what steps would facilitate sharing? What steps would facilitate sharing in frequency bands shared with terrestrial operations? To what extent is sharing with other operators, both federal and commercial, possible, depending on the type of ISAM mission? Are there frequency bands that could support ISAM missions, but that have not been used for these types of missions to date? What are the synergies, if any, between space launch activities and associated frequency uses and ISAM operations? Are there advances in equipment or other technologies that would allow for use of frequency bands to support these missions, or make sharing feasible in bands not previously utilized for space operations? What are the pros and cons of any necessary operational changes, and how do those affect the cost and viability of ISAM missions?
We observe that ISAM missions may involve communications links among spacecraft within or beyond Earth's orbit, among spacecraft and equipment or devices located on celestial bodies, or among equipment and devices located on a celestial body. We seek comment on the potential scope of these types of communications links and the unique issues presented by such communications when it comes to spectrum licensing. In so doing, we ask about the role of existing allocations for satellite services, including inter-satellite links, in supporting some of these communications. Inter-satellite communications may be useful for space-based tracking assets and can enable ultra-high-speed data transfer and quantum-encrypted communications. What are the spectrum needs for communications activities occurring beyond Earth's orbit, such as those between spacecraft or on or around celestial bodies—the moon, or an asteroid, for example? How can the Commission facilitate the development of communications networks on, or in the orbit of, other celestial bodies? What considerations should be made in assigning frequencies for communications on celestial bodies, such as between equipment on the lunar surface? What are the challenges with spectrum assignments for Earth station support for ISAM missions beyond Earth's orbit?
We seek comment on any updates or modifications to the Commission's licensing rules and processes that would facilitate ISAM capabilities. The Commission's licensing for space stations is “facilities-based,” meaning that the license is associated with a specific radio station. That station includes “accessory equipment” necessary to conduct communications activities at a location. For facilities involved in ISAM activities the licensing process would typically involve an application filed under part 25 or part 5 of the Commission's rules. Part 25 licenses are appropriate for commercial operations, including licenses for NGSO and GSO space stations, small satellites, and small spacecraft. Part 5 rules are more limited in scope to specific categories of noncommercial operations, including, among others, scientific experiments, communications research, product development, and market trials. Both part 25 and part 5 also provide for special temporary authority (STA). In general terms, the International Bureau and/or the Office of Engineering and Technology will evaluate the application and issue a grant, typically with conditions, upon a finding that the grant serves the “public interest, convenience, and necessity.” We seek comment on any updates to part 25 or part 5 of the Commission's rules for application processing to accommodate and facilitate ISAM missions.
Which of the Commission's current processes are suited for licensing different types of ISAM missions? As ISAM capabilities develop and are increasingly offered as commercial services, part 5 licensing may no longer be appropriate. Should ISAM missions generally be licensed under part 25 of the Commission's rules, or will part 5 experimental licensing continue to be appropriate in some instances, and under what circumstances?
Given the Commission's “facilities-based” approach to licensing, we also seek comment on characteristics of ISAM activities and relevant considerations affecting Commission licensing that might be addressed through part 25 of the Commission's rules. What are the challenges, if any, presented by current Commission processes for missions of variable duration or missions exhibiting evolving characteristics? How should the Commission consider variable locations in space such as transition between orbital altitudes and inclinations? Are there other considerations the Commission should take into account regarding individual missions versus multiple, different missions? What application requirements best account for the evolving nature of ISAM
Under part 25 of the Commission's rules, space stations are categorized as GSO or NGSO, and processed accordingly. In most cases, space stations involved in ISAM activities will likely be NGSO, but in some cases they could be engaged in activities near the GSO arc, or even co-located or attached to a GSO space station. How should these types of spacecraft be categorized for licensing purposes?
We seek comment on the Commission's current technical disclosures, such as those in the Schedule S form required for part 25 space station license applications and the technical showings required under sections 25.114(c) and 25.114(d) of the Commission's rules. Are the required technical disclosures sufficient to capture the specifications of ISAM missions? If not, what other technical disclosures should be required? Similarly, for any ISAM missions that fit under the Commission's streamlined processes for small satellites and small spacecraft, are the technical showings required by these processes sufficient to capture the specifications of ISAM missions, and if not, what modifications to these required technical showings would better accommodate ISAM missions? Is the Schedule S format appropriate for ISAM missions? How might the Commission modify its Schedule S form or update the other disclosure requirements in its rules to accommodate ISAM missions?
Additionally, we seek comment on licensing processes for earth stations supporting ISAM missions. Are there updates or modifications to the earth station process that would facilitate ISAM missions?
Based on the wide array of ISAM operations, how can the Commission provide guidance on its application processes? Are there additional ways that the Commission can offer guidance such as public notices, FCC Fact Sheets, etc.?
We seek comment on any additional licensing considerations unique to satellite servicing missions. Servicing missions typically consist of multiple spacecraft. In some cases, servicing missions may involve a single operator or licensee that is operating more than one spacecraft. We expect, however, that servicing missions will also involve multiple spacecraft that are owned and operated by different entities. We seek comment on the licensing process for these, or similar missions. Our approach to date has been to treat both the servicer and client spacecraft as needing to be licensed for the scope of radio-frequency activities involved in the servicing operations. Should the licensing process require the servicer alone to be responsible for obtaining a Commission license for communications associated with the servicing activities? Alternatively, should the client operator (
We seek comment on any special considerations in licensing of assembly and manufacturing missions. Are
ISAM missions also raise the possibility of interactions between operators under the jurisdiction of multiple nations. Servicing and debris remediation missions, in particular, could involve operators or objects outside the jurisdiction of the United States. Assembly activities may also involve these concerns, to the extent assembly involves objects under the supervision of different countries. We seek comment on whether and how to take this into account in the Commission's licensing process. Would such a relationship be governed by a regulatory framework analogous to the U.S. market access framework, enabling non-U.S.-licensed space stations to access the U.S. satellite marketplace? Would documentation of consent from the non-U.S. operator or administration be appropriate? If so, what kind of documentation should the Commission require?
In the majority of countries with developing ISAM capabilities, both government and non-government entities have established partnerships with at least one other entity located in another country. What international coordination is needed for U.S.-licensed servicing of non-U.S. satellites, for example, and vice versa? How can the Commission ensure that operators and/or Administrations are in agreement on the scope of certain activities involving non-U.S. spacecraft? Are there circumstances in which the Commission should consult with the State Department to help ensure mutual understanding between Administrations, and if so, should such a process be formalized?
The Commission's orbital debris mitigation rules apply to all space station operators seeking license and authorization under the Commission's rules, including operators of ISAM missions. All applicants, including applicants for operations involving ISAM activities, must provide a description of their orbital debris mitigation design and operational strategies consistent with the Commission's orbital debris mitigation rules, including, among other requirements, addressing release of debris during normal operations, risk of accidental explosions, and collision risk, casualty risk, and post-mission disposal reliability.
As the scope of commercial and other non-governmental in-space activities expands, some ISAM activities may present fact patterns that have not been specifically contemplated by current orbital debris mitigation rules and adopted practices. For example, the current practices focus on a “use or deplete” approach to stored energy.
A specific sub-category of ISAM missions are those performing a remediation or removal function for preexisting space debris, including defunct satellites, satellite fragments, and material released during normal operations. We look forward to the continued advancement of technologies that would enable remediation and removal of debris, and how the Commission can facilitate or support advancement of these technologies. What is the current reliability and technical readiness of these technologies? What is the state of the art in active debris remediation or removal technologies? Which technological approaches to address active debris remediation or removal are developed or being developed? What actions can the Commission take to promote continued growth, innovation, and development in debris remediation and removal?
We seek comment on whether and how the Commission should consider active debris removal as part of an operator's orbital debris strategy. Are these active disposal efforts, in particular retrieval of defunct satellites or related debris, at or close to a technological level that the Commission can consider them as part of an operator's orbital debris strategy for post-mission disposal or backup post-mission disposal? Would the Commission's consideration of active debris removal or remediation as part of its orbital debris mitigation review help to drive innovation in this sector? To ensure a sustainable space environment, should operators be required to utilize active debris removal if the primary post-mission disposal maneuvers fail? If used as a secondary or backup method, how much investment should operators be required to devote to the technological adaptation for disposal methods? What approaches to implement this requirement are possible? For example, to ensure active debris removal, would an operator bond associated with removal be appropriate?
What industry adaptations could facilitate active debris removal with consideration to return on investment (
We seek comment on specific considerations for ISAM missions that go beyond Earth's orbit and the Commission's role in planetary protection. ISAM activities beyond Earth's orbit could include a wide range of operations, including missions to the Moon and asteroids.
In general, we seek comment on any updates to the Commission's rules that might facilitate licensing ISAM missions beyond Earth's orbit. The Commission recently adopted a set of rules designed for missions beyond Earth's orbit in the part 25 “small spacecraft” rules, but these rules were not adopted with a specific focus on ISAM activities. Are these rules sufficient for ISAM missions beyond Earth's orbit, or are there changes either generally or specific to ISAM activities that would be beneficial? Are there any changes to the Commission's part 5 experimental or regular part 25 processing rules that would facilitate the licensing of ISAM missions beyond Earth's orbit?
The extent of planetary protection policies needed for an individual mission are determined by categorizing the mission based on the type of celestial body it will encounter (
We seek comment on what, if any, role the Commission should play in reviewing planetary protection plans and implications for ISAM missions. What are the planetary protection implications of ISAM capabilities? Are there contractual mechanisms or governmental processes that ensure adequate supervision of missions with respect to planetary protection policies? What, if any, steps can the Commission take to facilitate planetary protection review? Are there any statutory limits for the Commission's involvement in ensuring that the United States meet its treaty obligations and international commitments? How can the commission best ensure our authorizations for these missions serve the public interest?
With respect to manufacturing missions, in-situ resource utilization (ISRU) is currently being considered for use in missions to the asteroids, the Moon, and Mars. Landing spacecraft at these destinations have varying degrees of planetary protection considerations: undifferentiated, metamorphosed asteroids are Category I; other asteroids and the Moon are Category II; and Mars is Category IV. Are there unique or specific planetary protection concerns for space resource utilization? What role should be appropriate for the Commission to play in overseeing such missions from a planetary protection perspective?
The ISAM National Strategy calls for the U.S. domestic regulatory regime to be updated as ISAM technologies mature to facilitate ISAM activities. How can the Commission's regulations, or the Commission's coordination with other government agencies, facilitate ISAM activities beyond Earth's orbit, including on other celestial bodies? What should be the extent of oversight by the Commission of objects remotely controlled via an FCC-licensed station?
We also seek comment on ways to facilitate development of and competition in ISAM activities, provide a diversity of on-orbit service options, and promote innovation and investment in the ISAM field. Are there any regulatory barriers that may increase cost or prevent entry that can be removed or modernized to facilitate innovation and investment in ISAM in the public interest? How can the Commission encourage new operators to enter into the marketplace to provide commercial ISAM services as well as those wishing to expand their market access? What actions can the Commission take to promote continued growth, innovation, and development in ISAM operations? Moreover, how can we promote innovation and investment in ISAM without simultaneously reducing incentives for compliance with our rules for orbital debris mitigation, such as rules that encourage post-mission disposal?
The costs of commercial space activity are extensive and there are not necessarily immediate returns on investment opportunities for operations such as orbital debris remediation efforts. Aside from the incentives provided to ISAM operators, we seek to analyze the current state of ISAM technology and understand its economic impact on space-based services. To better understand this emerging market segment, we ask for comment on where ISAM fits within the broader satellite communications services sector. What firms currently supply ISAM services? What entities demand ISAM services? We also seek comment on the nature of the cost structure of firms supplying ISAM activities. How important are economies of scale in production? We seek comment on the current and future state of ISAM technology and its economic impact on space-based services. How does innovation in such technologies and services impact the space-based industry when evaluated
What regulatory incentives can be provided to ISAM operators and developers to encourage innovation and growth in this field? What regulatory incentives can be provided to ISAM clients to encourage use of ISAM technology? What are ISAM operators' concerns with respect to the Commission's regulatory processes regarding their operations? How can the Commission address these concerns while also maintaining access to spectrum and a safe space environment for all operators?
Finally, the Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the topics discussed herein. Specifically, we seek comment on how the topics discussed and any related proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as the scope of the Commission's relevant legal authority.
Under the Regulatory Flexibility Act (RFA), no Initial Regulatory Flexibility Analysis is required for this Notice of Inquiry.
Accordingly,
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of proposed regulatory guidance; extension of comment period.
FMCSA extends the comment period for its August 16, 2022, notice of proposed regulatory guidance relating to the draft Medical Examiner's Handbook (MEH), which includes updates to the Medical Advisory Criteria published in the United States Code of Federal Regulations. FMCSA received requests for an extension to the comment period from the Owner-Operator Independent Drivers Association and two individuals. The Agency finds it is appropriate to extend the comment period to provide interested parties additional time to submit their responses to the notice. Therefore, the Agency extends the deadline for the submission of comments to October 31, 2022.
The comment period for the notice published August 16, 2022, at 87 FR 50282, is extended to October 31, 2022.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2022-0111 using any of the following methods:
•
•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (FMCSA-2022-0111), indicate the specific page and section of the MEH to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view any documents mentioned as being available in the docket, go to
DOT solicits comments from the public to better inform its guidance process. DOT posts these comments, without edit, including any personal information the commenter provides, to
The
FMCSA received a request from the Owner-Operator Independent Drivers Association to extend the comment period for an additional 60 days. A former truck driver (Bob Stanton) requested 180 days from publication of the notice to submit comments. Another individual (Daniel Spaulding) suggested that a longer period was necessary to understand the draft MEH. In summary they both stated that the draft MEH is 122 pages long with highly detailed and technical information, and that additional time is needed to thoroughly review the updated MEH and to develop meaningful feedback. Copies of the requests are available in the docket for this notice.
In consideration of these requests and to allow additional time to review and submit comments, FMCSA extends the deadline for submitting comments in response to the August 16, 2022 (87 FR 50282)
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of proposed rulemaking.
This document proposes fees for Fiscal Year (FY) 2023 and future FYs relating to the registration of importers and the importation of motor vehicles not certified as conforming to the Federal motor vehicle safety standards (FMVSS). In addition to proposing new fee amounts, this document also proposes three modifications to existing provisions of part 594. The first seeks to modify our assessment of the administrative costs of registered importer (RI) renewals by authorizing collection of inspection costs as part of the inspected entity's monthly invoice instead of adding those costs to its annual renewal fee. The second proposal would seek to adjust how a vehicle inspection fee is determined in cases where an RI requests inspection of a vehicle subject to an eligibility petition. Finally, the third proposal would clarify circumstances in which NHTSA (the Agency) would charge additional fees for submission of conformity packages with errors or omissions. The fees in this update are mandated by statute and are necessary to maintain the RI program.
You should submit your comments early enough to ensure that Docket Management receives them not later than September 29, 2022.
Comments should refer to the docket and notice numbers above and be submitted by any of the following methods:
•
•
•
•
Neil Thurgood, Office of Vehicle Safety Compliance, NHTSA at 202-366-5291. For legal issues, you may call Thomas Healy, Office of Chief Counsel, NHTSA at 202-366-2992.
The Imported Vehicle Safety Compliance Act of 1988, which took effect on January 31, 1990, established new requirements for the importation of vehicles that had not been certified as meeting applicable FMVSS. On and after that date, motor vehicles not manufactured to conform to the FMVSS may be imported on a permanent basis only by a person or entity known as a “registered importer” (RI) that has registered with NHTSA, or by persons who have contracts with RIs to perform conformance work. RIs are regulated by NHTSA and modify nonconforming vehicles to meet U.S. safety standards. Under the statutory scheme, the Agency must first determine that the nonconforming vehicle is eligible for importation. Eligible vehicles are accompanied by a bond given to secure the performance of the conformance work, or, if the vehicle is not brought into full conformance, to ensure its exportation or abandonment to the United States at no cost to the Federal government.
NHTSA must impose fees to cover administrative costs incurred in administering the registered importer program. 49 U.S.C. 30141(a)(1)(B)(3) and (e) direct NHTSA to establish fees to cover the costs of carrying out the registration program for importers, processing the vehicle bonds, and making import eligibility determinations. Section 30141(e) states that these fees must be reviewed and adjusted at least every 2 years and that the fees for a FY must be established before the FY in question.
On September 29, 1989, NHTSA issued 49 CFR part 594, establishing the initial fees authorized by the Imported Vehicle Safety Compliance Act of 1988. NHTSA has subsequently revised the fee schedules consistent with the directive that the fees be updated. NHTSA last set fees for FY 2015 and later through a final rule published in the
NHTSA is directed by statute to periodically review and make appropriate adjustments in the fees established for the administration of the RI program.
The statute authorizes fees to cover the costs of administering the importer registration program, of making import eligibility decisions, of reviewing vehicle-specific conformity documentation (conformity packages) submitted by RIs, and of processing the bonds furnished to the Department of Homeland Security (Customs and Border Protection, hereafter referred to as Customs).
The volume of nonconforming vehicles imported into the United States, primarily from Canada, has been steadily increasing in the years that have elapsed since these fees were last updated. In the 2014 calendar year (CY), 71 registered importers facilitated the importation of approximately 73,800 vehicles. By CY 2016, the number of RIs had risen to 87 and slightly more than 300,000 vehicles were processed by these RIs. The volume of imported vehicles held steady around 300,000 for the years that followed. In CY 2020, a year in which many businesses were shuttered or operating at decreased capacity owing to the COVID-19 public health crisis, 121 RIs still managed to import over 300,000 vehicles, and the total in CY 2021 exceeded 370,000. This protracted, large increase in volume has strained Agency resources while concurrently increasing NHTSA's concerns about enforcement. The increased numbers of conformity packages have required the Agency to authorize overtime, divert employees assigned to other tasks, and take other measures to complete timely reviews. While RIs have been submitting their conformity packages electronically as a temporary measure during the COVID-19 public health crisis, the bulk of these packages have historically been prepared in hard copy on paper. To reduce burdens associated with both preparing and processing conformity packages, NHTSA is currently developing a system that will serve as a permanent avenue for submitting conformity packages electronically rather than in hard copy.
Enforcement concerns have prompted the Agency to perform more inspections of RI facilities and records to ensure compliance and to initiate suspensions against RIs found to be operating in violation of the statutes and regulations administered by NHTSA. Actions to revoke or suspend RIs incur costs that are recoverable as a component of the RI annual fee. Five RIs were suspended in CY 2021, and the costs of those suspensions have been considered in calculation of the updated RI maintenance fee. Other ongoing investigative matters that conclude after this update will be considered in the next cyclical update to the schedule of fees.
49 U.S.C. 30141(a)(3) directs that RIs must pay the annual fees established “to pay for the costs of carrying out the registration program for importers. . . .” This fee is payable by both new applicants and by existing RIs. To maintain its registration, each RI, at the time it submits its annual fee, must also file a statement affirming that the information it furnished in its registration application (or in later submissions amending that information) remains correct.
The regulation establishing the annual fees for facilitating registration of importers is found in 594.6. The initial annual fee for a new registrant contains three components for which both direct and indirect costs are to be recovered. The first component covers the cost of processing an application submitted by a person seeking to become a registered importer (49 CFR 594.6(a)(1)). The second component covers costs attributable to any necessary inspection of an applicant's facilities (49 CFR 594.6(a)(2)) and the third component covers the remaining costs (49 CFR 594.6(a)(3)). The first and third components are paid with the initial application. All inspection costs incurred before consideration of an initial application are payable by the end of the tenth calendar day after notification by the Agency (
Section 594.6 also addresses the annual fees associated with continuous administration of the RI program. These costs include calculating, revising, and publishing the fees to apply in the next FY, processing and reviewing annual RI renewal statements, processing the annual fee, processing and reviewing changes to an RI's registration, conducting inspections to verify RIs are complying with regulations, and acting to suspend or revoke RI registrations (49 CFR 594.6(f)). The direct and indirect costs that NHTSA recovers for renewal applications, administration, and maintenance of the RI program are defined in § 594.6(g) and (h).
Direct costs are the estimated costs of professional and clerical staff time, computer and computer operator time, and postage dedicated to processing renewals and administering the registration, per RI. Under 49 CFR 592.6(j), the Agency may inspect a facility and the records that the RI must keep in fulfillment of its program responsibilities. Thus, the direct costs included in establishing the annual fee for a specific RI include costs of transportation and per diem attributable to inspections of that RI for administration of the registration program (to the extent those costs were not included in a previous annual fee) (49 CFR 594.6(g)).
Indirect costs included in renewing RI registrations include a pro rata allocation of the average benefits of persons employed in processing annual statements, or changes thereto, in recommending continuation of RI status, and a pro rata allocation of the costs attributable to maintaining the office space, computer systems and related items (49 CFR 594.6(h)). This update includes the to-date development costs of a computer system being developed to aid in cataloging information and reports related to RIs' registration records and activities. This cost will be distributed across all active RIs (121 as of the writing of this notice) and included in the maintenance fee for active registered importers with the goal that total development cost will be recovered after four years.
Historically, costs attributable to suspension and revocation actions have been included as an element of the program maintenance portion of the application and renewal fees, and have been composed of the direct and indirect costs attributable to investigation of the offending RI, as well as preparation of, distribution of, and reviewing responses to orders to show cause. Past fee updates typically covered two-year periods covering only one suspension or revocation. The five suspensions alluded to in the introduction happened in CY 2021 alone, and total $360,222.65 in direct and indirect costs to the Agency. In order to recover this amount over the two years this updated fee schedule is intended to cover, half of this amount is distributed across all RIs (121 present and any future) as a factor in the program maintenance cost that is ultimately included in both the registration and renewal fees.
To comply with the statutory directive to set fees, we reviewed the existing fees and their bases to establish fees sufficient to cover costs. The initial component of the Registration Program Fee is the fee to cover expenses attributable to processing and acting upon registration applications. We have determined that this fee should be increased from $333 to $437 for new applications. The adjustments reflect our time expenditures in reviewing applications and account for the increase in direct costs relating to the increases in salaries of employees on the General Schedule and the increase in contractor costs to the Agency, as well as the increases in indirect costs attributed to the Agency's overhead costs. Based upon our review of these costs, the portion of the fee attributable to the maintenance of the registration program is $3,1318 for each RI, which includes a portion attributable to the costs of suspending a number of registrations, as well as a portion of development costs of the new RI recordkeeping and investigation system. When this figure is added to the proposed $437 (representing the registration application component), the cost to a new applicant for RI status comes to $3,568, which is the fee we propose. This represents an increase of $2,724 over the existing fee.
We must also recover costs attributable to reviewing of a participating RI's annual statement and verifying the continuing validity of information already submitted. We have determined that the fee for the review of the annual statement—essentially the RI “renewal fee”—should be increased from $215 to $488. When the $3,131 maintenance portion is added to the $488 annual statement component, the total cost to an RI for renewing its registration comes to $3,619, which represents an increase of $2,893. The increase in these fees is attributable primarily to the increase in costs over the last 8 years since fees were last increased, including increased maintenance costs arising from multiple suspensions, as well as to the increase in direct costs relating to the increases in salaries of employees on the General Schedule, increases in indirect costs attributed to overhead, and the increase in the maintenance portion of the fee attributable to development of the new investigative/recordkeeping tool for administering the RI program.
Authority for NHTSA to recover the costs of inspecting an RI's facility and examining an RI's records has been included in part 594 since it was first promulgated in 1989.
NHTSA is reaffirming that it will be including the cost of facility and recordkeeping inspections in the administrative costs that must be paid annually by an inspected RI. The Agency is, however, proposing that inspection costs be collected in the same fashion as inspection costs incurred in the initial application process. Therefore, an existing RI that has been inspected would be billed at the conclusion of the inspection, and would be subject to automatic suspension under 49 CFR 592.7(a)(1) if the Agency did not receive payment within fifteen calendar days of the date of the invoice. As noted above, 49 CFR 594.6(h) enumerates RI registration renewal indirect costs and provides that they represent a pro rata allocation of the average salary and benefits of employees who process the annual statements and perform related functions, and “a pro rata allocation of the costs attributable to maintaining the office space, and the computer or word processor.”
The indirect costs that are currently in effect are $25.73. These costs represent hourly overhead expenses attributed to the average NHTSA employee. We are increasing this figure by $16.52, to $42.25. This increase is based on increases in enacted budgetary costs within the DOT since the fees were last adjusted, which are primarily attributable to increases in operating expenses for the Agency over the 8 years since fees were last increased.
49 U.S.C. Section 30141(a)(3)(B) requires that RIs pay other fees the Secretary of Transportation establishes to cover the costs of “making the [eligibility] decisions under this subchapter.” This includes decisions on whether the vehicle subject to a petition for an eligibility determination is substantially similar to a motor vehicle that was originally manufactured for sale in the United States and certified by its original manufacturer as complying with all applicable FMVSS, and whether the vehicle is capable of being readily altered to meet those standards. Alternatively, where there is no substantially similar FMVSS-certified motor vehicle, the decision is made on whether the safety features of the subject vehicle comply with, or are capable of being altered to comply with, the FMVSS based on destructive test information or such other evidence that NHTSA deems to be adequate. These decisions are made in response to petitions submitted by RIs or manufacturers, under 49 CFR 593.5, or on the Administrator's own initiative under 49 CFR 593.8.
The fee for a vehicle imported under an eligibility decision made in response to a petition is payable in part by the petitioner requesting the decision, and in part by RIs importing vehicles rendered eligible under that decision. As a result, the fee to be charged for reviewing the submitted package covering each imported vehicle includes the estimated pro rata share of the costs, both direct and indirect, borne upon the Agency in making all the eligibility decisions in a FY.
Since we last amended the fee schedule, the overall number of vehicles imported by RIs has increased, while the number of petitions has decreased. The total number of vehicles imported by RIs over the period beginning with CY 2015 averaged 299,133 vehicles each year. Over the same period, the number of vehicles imported under an import eligibility petition that was submitted by an RI (as opposed to an import eligibility decision made on the Agency's initiative) was only 1,408 or approximately 201 vehicles each year.
Since the inception of the RI program, RIs have submitted 860 petitions to NHTSA, averaging 29 per year. However, in CYs 2015 through 2021, only 92 petitions were submitted by RIs, an average of about 12 each year. As a result, the Agency has devoted less staff time to reviewing and processing import eligibility petitions since we last revised the fees.
Despite these trends, however, increased direct and indirect costs since 2014, including costs associated with publication of notices in the
The above analysis incorporates proposed increases in the currently established fees of $175 and $800 that cover the initial processing of “substantially similar” petitions and petitions for vehicles that have no substantially similar U.S.-certified counterpart, respectively. These fees have not been adjusted over several iterations of fee updates, and therefore we propose to increase the fees to $320 and $1,280 for vehicles petitioned under 593.6(a) and 593.6(b), respectively. These adjustments more accurately reflect the costs associated with petition review and publication and maintain a ratio between petition costs paid by the petitioner and subsequent importers of the covered vehicles that is similar to the ratio found in earlier updates.
An RI has not requested inspection of a petition vehicle in recent history, so there is little evidence to suggest that the fee covering such inspections must be adjusted outside of potential adjustments to account for inflation. However, in the interest of unifying the Agency's approach with respect to recovering inspection costs, NHTSA is proposing to change this from a flat fee to inclusion of costs of transportation, lodging, and per diem
49 U.S.C. Section 30141(a)(3) requires a registered importer to pay any other fees the Secretary of Transportation establishes “to pay for the costs of . . . processing bonds provided to the Secretary of the Treasury . . .” upon the importation of a nonconforming vehicle to ensure that the vehicle will be brought into compliance within a reasonable time, or if it is not brought into compliance within such time, that it be exported, without cost to the United States, or abandoned to the United States.
The Department of Homeland Security (Customs) exercises the functions associated with the processing of these bonds. To carry out the statute, we make a reasonable determination of the costs that Customs incurs in processing the bonds. The cost to Customs is based upon an estimate of the time that a GS-9, Step 5 employee spends on each entry, which Customs judged to be 20 minutes. To account for increases in General Schedule salary rates since this rule was last updated, we are increasing the processing fee from $9.34 per bond to $11.20.
In lieu of sureties on a DOT conformance bond, an importer may offer United States money, United States bonds (except for savings bonds), United States certificates of indebtedness, Treasury notes, or Treasury bills (collectively referred to as “cash deposits”) in an amount equal to the amount of the bond.
In the years that have elapsed since this fee was last updated, there has been little demand on the part of RIs to submit cash deposits in lieu of conformance bonds. As we aim to maintain this fee in case it should prove useful in the future, the Agency considered its direct and indirect costs in calculating the fee for the review, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond, and is proposing to maintain the fee of $499. NHTSA intends to revisit the methodology for calculating this review in a future update.
In a final rule published in the
In setting a value for this new fee, NHTSA calculated the direct costs (contract and professional staff time, computer costs, and costs for record assembly, marking, shipment, and storage) by surveying the resources being used to process and review 21,000 conformity packages each year. The analysis concluded that the work consumed annual staff time equivalent to 1.75 data entry personnel, .37 computer programmers and .90 safety and compliance analysts.
NHTSA adjusted this fee in 1998 (63 FR 45183, Aug. 25, 1998), and again periodically, until it was last adjusted in 2014 (79 FR 57002, Sept. 24, 2014). Except for adding provisions recognizing savings realized when payments are made by credit card and instituting special fees to recover the extra costs incurred when packages are found to contain errors, the Agency's cost analyses appear to have remained unchanged from the time § 594.10 was first instituted in 1997.
As noted above, large increases in the volume of vehicles imported from Canada since 2015 have resulted in NHTSA receiving anywhere from 250,000 to over 350,000 vehicle conformity packages annually. The Agency has responded to this increased volume by dedicating more resources to the task of reviewing those conformity packages. Accordingly, the methodology previously employed, which relied on 1997 level resource expenditures being distributed on a pro rata basis over the number of conformity packages received, is no longer valid.
For the purposes of this proposed rule, the Agency has calculated the costs of reviewing conformity packages by first assessing the resources now being applied to the task. The Agency calculated the direct cost of reviewing each conformity package as requiring a very conservative estimate of 10 minutes per package for a GS-12 step 5 employee—which establishes an absolute floor attributable to labor cost of $8.15
NHTSA then added the indirect costs for three full-time analysts and a portion of electronic development costs for a system being developed to facilitate electronic submission of conformity packages ($460,504.50, which is one quarter of the to-date cost), and distributed this total, $796,217.94, over the estimated average of 300,000 conformity packages submitted to NHTSA each year, arriving at indirect costs of $2.66 for each conformity package. Adding the direct costs of $11.66 and indirect costs of $2.66 per package yields a total cost of approximately $14.32 per package, which is the fee NHTSA proposes should be assessed in the simplest case, where the vehicle at issue has been entered electronically through the Automated Broker Interface (ABI) maintained by Customs, and the RI submitting the certificate is capable of corresponding by email and pays by credit card.
The Agency is considering reducing the review fee assessed for conformity packages submitted through the electronic submission system that is currently under development. However, because it would be impossible at this stage to quantify savings to the government, and potentially to RIs, realized through use of this system, we
Other conformity packages that require additional handling and more cumbersome payment methods, amounting to approximately 50% additional review and handling time, incur additional costs. Accordingly, NHTSA is proposing to adjust the fee for these packages to 150% of the review fee assessed for the simpler packages, or approximately $21.
Finally, because incomplete or incorrect conformity packages are posing a significant problem for the Agency, NHTSA must address the fee attributable to review of conformity packages that contain one or more errors. This fee is being increased slightly under the new methodology for determining review fees to $58 per problematic package from the previous level of $57. Additionally, in order to account for escalating costs attributable to repeated resubmission of erroneous conformity packages, NHTSA is proposing to modify § 594.10(d) to clarify that the Agency reserves the right to assess the charge for each instance a conformity package is submitted containing errors, including instances in which a package is resubmitted with an error. Thus, the fee for reviewing packages containing errors is being adjusted to $58, which accounts for 45 minutes of review time and 150% increased processing and handling costs, and this fee may be assessed in each instance that an erroneous package is resubmitted.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations as to whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
NHTSA has considered the impact of this proposed rule under Executive Order 12866, E.O. 13563, and the DOT's regulatory policies and procedures. NHTSA has determined that the proposed rule is not significant under Executive Order 12866, E.O. 13563, and the DOT's regulatory policies and procedures. Based on the level of the fees and the volume of affected vehicles, NHTSA anticipates that the costs of this rule are so minimal as not to warrant preparation of a full regulatory evaluation.
Furthermore, this action does not involve any substantial public interest or controversy. The rule will have no substantial effect upon State and local governments. There will be no substantial impact upon a major transportation safety program.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
The Agency has considered the effects of this proposed rule under the Regulatory Flexibility Act and certifies that the amendments will not have a significant economic impact upon a substantial number of small entities.
The following is NHTSA's statement providing the factual basis for the certification under 5 U.S.C. 605(b). The proposed amendments would affect entities that modify nonconforming vehicles and that are small businesses within the meaning of the Regulatory Flexibility Act; however, the Agency has no reason to believe that these companies will be unable to pay the fees adjusted by this action. This notice does not propose any new fees and the fee increases proposed herein represent overdue increases from the fees previously established by NHTSA. Moreover, consistent with prevailing industry practices, these fees are likely to be passed through to the ultimate purchasers of the vehicles that are altered and, in most instances, sold by the affected registered importers. The cost to owners or purchasers of nonconforming vehicles that are altered to conform to the FMVSS may be expected to increase to the extent necessary to reimburse the registered importer for the fees payable to NHTSA for the cost of carrying out the registration program and making eligibility decisions, and to compensate Customs for its bond processing costs.
Governmental jurisdictions will not be affected at all since they are generally neither importers nor purchasers of nonconforming motor vehicles.
Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” Executive Order 13132 defines the term “policies that have federalism implications” to include regulations 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.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.
This proposed rule will not have substantial direct effects on the States,
NHTSA has analyzed this action for purposes of the National Environmental Policy Act. The proposed action will not have a significant effect upon the environment because it is not anticipated that the annual volume of motor vehicles manufactured, sold, or operated will vary significantly from that existing before the promulgation of the rule.
Pursuant to Executive Order 12988, “Civil Justice Reform,” NHTSA has considered whether this proposed rule would have any retroactive effect. NHTSA concludes that this rule will not have any retroactive effect. Judicial review of a rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires 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 the base year of 1995). Before promulgating a rule for which a written assessment is needed, Section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Agency publishes with the final rule an explanation why that alternative was not adopted. Because this proposed rule does not require the expenditure of resources beyond $100 million annually, this action is not subject to the requirements of Sections 202 and 205 of the UMRA.
Under the Paperwork Reduction Act of 1995, 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. Part 594 is associated with a collection of information covered by OMB Clearance No. 2127-0002, a consolidated collection of information for “Importation of Vehicles and Equipment Subject to the Federal Motor Vehicle Safety, Bumper, and Theft Prevention Standards.” This proposed rule does not affect the burden hours associated with Clearance No. 2127-0002 because the rule only adjusts the fees associated with participating in the registered importer program. These new fees will not impose a new required collection of information or otherwise affect the scope of the program.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113,15 U.S.C. 272, directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
In this proposed rule, we are adjusting the fees associated with the registered importer program. This document does not make substantive changes to the program nor do we adopt any technical standards. For these reasons, Section 12(d) of the NTTAA does not apply.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's (DOT) complete Privacy Act Statement in the
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long.
Please submit two copies of your comments, including the attachments, to Docket Management identified at the beginning of this document, under
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit your complete submission, including the information you claim to be confidential business information (CBI), to the NHTSA Chief Counsel. When you send a comment containing CBI, you should include a cover letter setting forth the information specified in our CBI regulation.
In addition, you should submit a copy from which you have deleted the claimed CBI to the Docket by one of the methods set forth above.
To facilitate social distancing due to COVID-19, NHTSA is treating electronic submission as an acceptable method for submitting CBI to the Agency under 49 CFR part 512.
Any CBI submissions sent via email should be sent to an attorney in the
Please note that these modified submission procedures are only to facilitate continued operations while maintaining appropriate social distancing due to COVID-19. Regular procedures for Part 512 submissions will resume upon further notice, when NHTSA and regulated entities discontinue operating primarily in telework status.
If you have any questions about CBI or the procedures for claiming CBI, please consult the attorney identified in the
You may read the comments received by Docket Management at the address and times given near the beginning of this document under
You may also see the comments on the internet. To read the comments on the internet, go to
You may download the comments. The comments are imaged documents, in either TIFF or PDF format. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically search the Docket for new material.
E.O. 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
1. Have we organized the material to suit the public's needs?
2. Are the requirements in the rule clearly stated?
3. Does the rule contain technical language or jargon that isn't clear?
4. Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
5. Would more (but shorter) sections be better?
6. Could we improve clarity by adding tables, lists, or diagrams?
7. What else could we do to make the rule easier to understand?
If you have any responses to these questions, please include them in your comments on this proposal.
The DOT 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 that appears in the heading on the first page of this document to find this action in the Unified Agenda.
Administrative practice and procedure, Imports, Motor vehicle safety, Motor vehicles.
For the reasons stated in the preamble, NHTSA proposes to amend 49 CFR part 594 as follows:
49 U.S.C. 30141, 31 U.S.C. 9701; delegation of authority at 49 CFR 1.95 and 49 CFR 501.8(g).
(a) Each person filing an application to be granted the status of a Registered Importer pursuant to part 592 of this chapter on or after October 1, 2022, must pay a fee of $3,568, as calculated below, based upon the direct and indirect costs attributable to: * * *
(b) That portion of the initial fee attributable to application processing for applications filed on and after October 1, 2022, is $437. The sum of $437, representing this portion, shall not be refundable if the application is denied or withdrawn.
(d) That portion of the initial annual fee attributable to the remaining activities of administering the registration program on and after October 1, 2022, is set forth in paragraph (i) of this section. * * *
(g) The direct costs included in establishing the annual fee for maintaining registered importer status are the estimated costs of professional and clerical staff time, computer and computer operator time, and postage, per Registered Importer. The direct costs included in establishing the annual fee for a specific Registered Importer include costs of transportation, lodging, and per diem allowance at the standard CONUS rate as established by the General Services Administration (
(h) * * * This cost is $42.25 per hour for the period beginning October 1, 2022.
(i) Based upon the elements and indirect costs of paragraphs (f), (g), and (h) of this section, the component of the initial annual fee attributable to administration of the registration program (excluding any charges for inspection costs), covering the period beginning October 1, 2022, is $3,131. When added to the costs of registration of $437, as set forth in paragraph (b) of this section, the costs per applicant to be recovered through the annual fee are $3,568. The annual renewal registration fee for the period beginning October 1, 2022, is $3,619.
(e) For petitions filed on and after October 1, 2022, the fee payable for seeking a determination under paragraph (a)(1) of this section is $320. The fee payable for a petition seeking a determination under paragraph (a)(2) of this section is $1,280. If the petitioner requests an inspection of a vehicle, costs of transportation, lodging, and per diem
(b) If a determination has been made pursuant to a petition, the fee for each vehicle is $273. * * *
(c) If a determination has been made pursuant to the Administrator's initiative, the fee for each vehicle is $125. * * *
(c) The bond processing fee for each vehicle imported on and after October 1, 2022, for which a certificate of conformity is furnished is $11.20.
(e) The fee for each vehicle imported on and after October 1, 2022, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond is $499.
(d) The review and processing fee for each certificate of conformity submitted on and after October 1, 2022, is $21. However, if the vehicle covered by the certificate has been entered electronically with the U.S. Department of Homeland Security through the Automated Broker Interface and the registered importer submitting the certificate has an email address, the fee for the certificate is $14, provided that the fee is paid by a credit card issued to the registered importer. If NHTSA finds that the information in the entry or the certificate is incorrect, requiring further processing, the processing fee shall be $58 for every instance in which the foregoing materials are submitted incorrectly.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the tricolored bat
We will accept comments received or postmarked on or before November 14, 2022. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Sonja Jahrsdoerfer, Field Supervisor, U.S. Fish and Wildlife Service, Pennsylvania Field Office, 110 Radnor Rd, Suite 101, State College, PA 16801; telephone 814-234-4090. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(a) The species is threatened by taking or other human activity (including vandalism and disturbance of winter habitat) and identification of critical habitat can be expected to increase the degree of such threat to the species; or
(b) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species.
We have scheduled a public informational meeting with a public hearing on this proposed rule for the tricolored bat. We will hold the public informational meeting and public hearing on the date and time listed above under
On June 14, 2016, we received a petition from the Center for Biological Diversity and Defenders of Wildlife requesting that the tricolored bat be listed as endangered or threatened and that critical habitat be designated for this species under the Act. On December 20, 2017, we published a finding that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted (82 FR 60362).
A species status assessment (SSA) team prepared an SSA report for the tricolored bat. The SSA core team included Service biologists, who consulted with other species and analytical experts (Service 2021, entire). The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the
A thorough review of the taxonomy, *life history, and ecology of the tricolored bat is presented in the SSA report (Service 2021, entire).
The tricolored bat is a wide-ranging bat species found in 39 States, the District of Columbia, 4 Canadian provinces, Belize, Guatemala, Honduras, Nicaragua, and Mexico. Tricolored bat is one of the smallest bats in eastern North America and is distinguished by its unique tricolored fur that appears dark at the base, lighter in the middle, and dark at the tip (Barbour and Davis 1969, p. 115). Tricolored bats often appear yellowish (varying from pale yellow to nearly orange), but may also appear silvery-gray, chocolate brown, or black (Barbour and Davis 1969, p. 115). Males and females are colored alike, and females consistently weigh more than males (LaVal and LaVal 1980, p. 44). Newly volant (able to fly) young are much darker and grayer than adults (Allen 1921, p. 55). Other distinguishing characteristics include 34 teeth (compared with 38 teeth in eastern North American
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. On July 5, 2022, the U.S. District Court for the Northern District of California vacated regulations that the Service (jointly with the National Marine Fisheries Service) promulgated in 2019 modifying how the Services add, remove, and reclassify threatened and endangered species and the criteria for designating listed species' critical habitat (
The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Because the decision in
It is not always possible or necessary to define the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.
The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be proposed for listing as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act
To assess tricolored bat viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.
The individual, population-level, and species-level needs of the tricolored bat are summarized below in Tables 1-3. For additional information, please see the SSA report (Service 2021, chapter 2).
In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. For a full description, see the SSA report (Service 2021, entire).
Although there are other stressors affecting tricolored bat, the primary factor influencing its viability is white-nose syndrome (WNS), a disease of bats caused by a fungal pathogen. Some of the other factors that influence tricolored bat's viability include wind-energy-related mortality, habitat loss, and effects from climate change. These stressors and their effects to tricolored bat are summarized below:
For over a decade, WNS has been the foremost stressor on tricolored bat. WNS is a disease of bats that is caused by the fungal pathogen
Wind-energy-related mortality of tricolored bat is a consequential stressor at local and regional levels. Tricolored bats are killed at wind energy projects primarily through collisions with moving turbine blades. Wind power is a rapidly growing portion of North America's energy portfolio in part due to changes in State energy goals (NCSL 2021, entire) and recent technological advancements (Berkeley Lab 2020, entire) and declining costs (Wiser et al. 2021, entire), allowing turbines to be placed in less windy areas.
Bat fatality varies across facilities, between seasons, and among species. Analyses suggest that the impact of wind related mortality is discernible from the effects of WNS in the ongoing decline of tricolored bat (Wiens et al. 2022, pp. 215-251; Whitby et al. 2022, pp. 145-163). Abundance of tricolored bat is projected to decrease by 19-21 percent by 2030 under current wind development scenarios (Wiens et al. 2022, pp. 215-251). As the wind energy risk index (the overall result of a risk assessment) increased, there is a decline in the predicted relative abundance of tricolored bats (Whitby et al. 2022, pp. 145-163). In other words, as wind energy installations increase in size, number, or distribution, tricolored bat survey counts declined.
Habitat loss and disturbance may result in the loss of suitable roosting or foraging habitat or loss of hibernacula. There are a variety of causes of habitat loss and disturbance that affect the tricolored bat such as (but not limited to) forest removal or conversion and anthropogenic hibernacula disturbance or destruction from human entry into hibernation sites. Loss of roosting, foraging, and commuting habitat may vary in the impacts to tricolored bats depending on the timing, location, and extent of the removal (Service 2021, pp. 49, 50). Although there have been losses of tricolored bat habitat and impacts could be high in the future, we find the current impact of habitat loss to be “Low” because the severity of population-level declines is slight. (Service 2021, p. 43). Forest removal may result in the following impacts to tricolored bats: loss of suitable roosting or foraging habitat, longer flights between suitable roosting and foraging due to habitat fragmentation of remaining forest patches, fragmentation of maternity colonies due to removal of travel corridors, and direct injury or mortality (during active season tree removal). Loss or modification of winter habitats may also result in negative impacts to tricolored bat, especially given the species' high site fidelity and narrow microclimate requirements for hibernation.
Additionally, disturbance (
While temporary or permanent habitat loss may occur throughout the species' range, impacts to tricolored bat and its habitat typically occur at a more local scale (
Climate change factors that may impact bats include changes in extreme drought, cold, or excessive rainfall, which may lead to changes in
Changing climatic conditions, including changes in temperature and precipitation, influence tricolored bat's resource needs, such as suitable summer and winter roosting habitat, foraging habitat, and prey availability. Although pervasive across tricolored bat's range, the magnitude, direction, and seasonality of climate change will vary geographically (
In evaluating current conditions of the tricolored bat, we used the best available data (further described in the SSA report; Service 2021, pp. 51-57). Winter hibernacula counts provide the most consistent, long-term, reliable trend data and provide the most direct measure of WNS impacts. We also used summer data (mist-net capture data and mobile and stationary acoustic data) in evaluating population trends, although the availability and quality of summer data varies temporally and spatially.
Available evidence, including both winter and summer data, indicates tricolored bat abundance has and will continue to decline substantially under current demographic and stressor conditions, primarily driven by the effects of WNS. To assess changes in diversity (genetic and ecological), we identified and delineated the variation across tricolored bat's range into three geographical representation units using the following proxies: variation in biological traits, genetic diversity, peripheral populations, habitat niche diversity, and steep environmental gradients (marked change in bioclimate such as temperature or precipitation) (Service 2021, p. 27).
WNS has caused estimated tricolored bat population declines of 90-100 percent across 59 percent of the species' range (Cheng et al. 2021, p. 7). Current demographic conditions based on past declines indicate the rangewide number of tricolored bat's known extant winter colonies has declined by 29 percent; in other words, almost one third of the species known hibernacula are extirpated but steep declines have been observed across a larger portion of its range. For the purposes of our analysis an extant winter colony is one in which at least two tricolored bats have been found; therefore, although the number of extant winter colonies has declined by 29 percent, the number of bats within winter colonies across the range has declined substantially. Tricolored bat winter abundance has declined across all representation units but varies spatially (24-89 percent). Declining trends in tricolored bat occurrence and abundance is also evident from summer data: (1) tricolored bat rangewide occupancy declined 28 percent in the period 2010-2019; (2) mobile acoustic detections decreased 53 percent in the period 2009-2019; and (3) summer mist-net captures declined 12 to 19 percent compared to pre-WNS capture rates. Based on current demographic and stressor conditions, future projections of tricolored bat abundance, number of hibernacula, and spatial extent will continue to decline. Under these current conditions (no expansion or increase in threats), by 2030, rangewide abundance declines by 89 percent, the number of known winter colonies declines by 91 percent, and tricolored bat's spatial extent declines by 65 percent (Service 2021, entire). Projected declines in tricolored bat's abundance, number of winter colonies, and spatial extent are widespread across all representation units under current conditions.
As discussed above, multiple data types and analyses indicate downward trends in tricolored bat population abundance and distribution over the last 14 years, and the best available information indicate that this downward trend will continue. Tricolored bat abundance (winter and summer), number of known occupied hibernacula, spatial extent, and summer habitat occupancy across the range and within all representation units are decreasing.
Since the first detection of WNS in 2006, tricolored bat abundance has declined, leaving many individual colonies with small numbers of individuals. At these low population sizes, colonies are vulnerable to individual extirpations from stochastic events and are vulnerable to the effects of cumulative impacts from multiple stressors. Furthermore, small populations generally cannot rescue one another from such a depressed state owing to the tricolored bat's low reproductive output (two pups per year) and high philopatry (tending to return to or remain near a particular site or area). These inherent life-history traits limit the ability of populations to recover from these low abundances. Consequently, effects of small population sizes exacerbate the effects of current and future declines due to continued exposure to WNS, mortality from wind turbines, and impacts associated with habitat loss and climate change.
We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. Using the SSA framework, we considered the cumulative impacts of white nose syndrome, wind energy-related mortality, habitat loss, and impacts of climate change on the tricolored bat. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.
Below is a brief description of conservation measures and regulatory mechanisms that are currently in place. Please see the SSA report for a more detailed description (Service 2021, Appendix 4).
Multiple national and international efforts are underway in an attempt to reduce the impacts of WNS. To date, there are no proven measures to reduce the severity of impacts. More than 100
To reduce bat fatalities, some wind facilities “feather” turbine blades (
All States have active forestry programs with a variety of goals and objectives. Several States have established habitat protection buffers around known Indiana bat
Many State and Federal agencies, conservation organizations, and land trusts have installed bat-friendly gates to protect important hibernation sites. All known hibernacula within national grasslands and forestlands of the Rocky Mountain Region of the U.S. Forest Service (USFS) are closed during the winter hibernation period, primarily due to the threat of WNS; these closures also reduce disturbance to bats inhabiting these hibernacula (USFS 2013, unpaginated). Because of concern over the importance of bat roosts, including hibernacula, the American Society of Mammalogists developed guidelines for protection of roosts, many of which have been adopted by government agencies and special interest groups (Sheffield
Tricolored bat is listed as endangered under Canada's Species at Risk Act (COSEWIC 2013, entire). In addition, tricolored bat receives varying degrees of protection through State laws as it is designated as endangered in Connecticut, Indiana, Massachusetts, New Hampshire, Ohio, Pennsylvania, Vermont, and Virginia; State-threatened in Tennessee and Wisconsin; and special concern in Alabama, Georgia, Iowa, Maine, Michigan, Minnesota, Missouri, South Carolina, and West Virginia.
As part of the SSA, we also developed future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the tricolored bat. To project future installed wind capacity, we relied upon National Renewable Energy Laboratory's (NREL; Cole et al. 2020) and Canadian Energy Regulator's (CER 2020) projections for the U.S. and Canada. To project future impacts of WNS, we relied on (1) predicted current and future occurrence of Pd on the landscape using two different models and (2) the WNS impacts schedule, both created from empirical
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.
WNS has been the foremost stressor on tricolored bat for more than a decade and continues to be currently. The fungus that causes the disease,
Tricolored bat abundance and spatial extent has also substantially declined. Consequently, the species is more vulnerable to catastrophic events because the risk is no longer spread across as large an area as it once was.
Tricolored bat representation has also been reduced with declines in abundance in all representation units and habitat types (loss of extent of occurrence). The steep declines in abundance and reductions in extent of occurrence have likely led to corresponding steep reductions in genetic diversity, and thereby has reduced tricolored bat adaptive capacity as the species loses inherent genetic material and variation in ecological settings.
As discussed above, multiple data types and analyses indicate downward trends in tricolored bat population abundance and distribution over the last 14 years, and to the best available scientific information indicates that this downward trend will change near term to the extent that we predict a decrease in rangewide abundance of 89 percent over the next decade. Additionally, the number of winter colonies will likely decline by 91 percent, and the species' spatial extent will likely decline by 65 percent by 2030. The projected widespread reduction in the distribution of occupied hibernacula under current conditions will lead to losses in the diversity of environments and climatic conditions occupied, which will impede the tricolored bat's ability to adapt to changing environmental conditions, more so as populations continue to decline in health and distribution. Moreover, at its current low abundance, loss of genetic diversity via genetic drift (random fluctuations in the numbers of gene variants in a population) will likely accelerate. Consequently, decreasing genetic diversity will further lessen tricolored bat's ability to adapt to novel changes (currently ongoing as well as future changes) and exacerbate declines due to continued exposure to WNS and other stressors.
After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that the tricolored bat's current population status indicates that this species is currently in danger of extinction. The species continues to experience the catastrophic effects of WNS and the compounding effects of other stressors. These threats and their effects on the species are highly likely to continue.
Since the first detection of white nose syndrome in 2006, tricolored bat abundance declined, on average, by 93 percent in known hibernacula with WNS, with most (93%) winter colonies having fewer than 100 individuals (Cheng et al. 2021, p. 7). At these low population sizes, colonies are vulnerable to extirpation from stochastic events (resiliency). Furthermore, tricolored bat's ability to recover from low population size is limited given their low reproductive output (two pups per year). Therefore, tricolored bat's resiliency is greatly compromised in its current condition.
Additionally, under current conditions, tricolored bat's spatial extent has declined and is projected to continue decline, with a 65 percent reduction by 2030. As the tricolored bat's abundance and spatial extent declined, the species has become more vulnerable to catastrophic events (declined redundancy).
In addition to reduced redundancy and resiliency, the bat's representation has also been reduced. Tricolored bat's capacity to adapt is constrained by its life history and the current level of its intraspecific diversity (
The species meets the definition of endangered rather than threatened. Thus, after assessing the best available information, we determine that tricolored bat is in danger of extinction throughout all of its range.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the tricolored bat is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the tricolored bat warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in
Our review of the best available scientific and commercial information indicates that the tricolored bat meets the definition of an endangered species. Therefore, we propose to list the tricolored bat as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition as a listed species, planning and implementation of recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Wisconsin, West Virginia, and Wyoming would be eligible for Federal funds to implement management actions that promote the protection or recovery of the tricolored bat. Information on our grant programs that are available to aid species recovery can be found at:
Although the tricolored bat is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service, U.S. Forest Service, Bureau of Land Management, National Park Service, and other Federal agencies; issuance of section 404 Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies, as described below.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act because the tricolored bat occurs in a variety of habitat conditions across its range and it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the species.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Disturbance or destruction (or otherwise making unsuitable) of known hibernacula due to commercial or
(3) Unauthorized destruction or modification of suitable forested habitat (including unauthorized grading, leveling, burning, herbicide spraying, or other destruction or modification of habitat) in ways that kill or injure individuals by significantly impairing the species' essential breeding, foraging, sheltering, commuting, or other essential life functions.
(4) Unauthorized removal or destruction of trees and other natural and manmade structures being used as roosts by the tricolored bat that results in take of the species.
(5) Unauthorized release of biological control agents that attack any life stage of this taxon.
(6) Unauthorized removal or exclusion from buildings or artificial structures being used as roost sites by the species, resulting in take of the species.
(7) Within areas used by the species, unauthorized building and operation of wind energy facilities that result in take of the species.
(8) Unauthorized discharge into sinkholes of chemicals, fill, or other materials that may lead to contamination of known tricolored bat hibernacula.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the appropriate field office (see
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We note that the court in
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) currently in effect state that designation of critical habitat is not prudent when any of the following situations exist:
(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; or
(ii) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species or, whether any areas meet the definition of “critical habitat.”
We examined the types of habitat that the tricolored bat uses for roosting and hibernating, such as live and dead leaf clusters of live or recently dead deciduous hardwood trees, Spanish moss (
The individual needs of the tricolored bat (outlined above in Table 1) may be met in a variety of forested habitats, as evidenced by the species' large historical range over 39 States, southeastern Canada, and central America, in which it occupied, prior to WNS, a wide variety of elevations, forest community types, latitudes, and climates. While temporary or permanent suitable forested habitat loss may occur throughout the species' range, impacts to tricolored bat typically occur at a more local scale (
In addition, the primary forms of human disturbance to hibernating bats result from human entry such as recreational caving, vandalism, cave commercialization (cave tours and other commercial uses of caves), and research-related activities (Service 2007, p. 80). Human disturbance at hibernacula can cause bats to arouse more frequently, causing premature energy store depletion and starvation (Thomas 1995, p. 944; Speakman et al. 1991, p. 1103), leading to marked reductions in bat populations (Tuttle 1979, p. 3) and increased susceptibility to disease. WNS infection leads to increases in the frequency and duration of arousals during hibernation and raises energetic costs during torpor bouts, both of which cause premature depletion of critical fat reserves needed to survive winter. In our April 27, 2016, determination that designating critical habitat for the northern long-eared bat is not prudent, we outlined a wide array of disturbances to hibernating bats resulting from the above activities (81 FR 24707). Given tricolored bat's similar susceptibility to the above-mentioned threats and overlapping range, we find that our not-prudent determination for the tricolored bat is consistent with our not-prudent finding for northern long-eared bat critical habitat. Identifying wintering habitat (hibernacula) as critical habitat on published maps for the tricolored bat would likely increase the threat from human entry and could increase the spread of WNS by identifying specific sensitive areas.
This not-prudent determination is based on the regulations that preceded the Service's 2019 revisions of 50 CFR part 424 (84 FR 45020; August 27, 2019) because on July 5, 2022, the U.S. District Court for the Northern District of California vacated those 2019 regulations. However, we considered whether the analysis of the prudency of designating critical habitat and the conclusion drawn from that analysis contained in this listing rule would be any different under the regulations at 50 CFR part 424 as they existed while the 2019 revisions were in place. We have concluded that our analysis and conclusion would not be different. To verify whether there would be a different outcome, we considered whether the tri-colored bat involves any of the circumstances in which designation of critical habitat may be not prudent under the 2019 revisions. We found that several of the circumstances for which designation of critical habitat would be not prudent under the 2019 revisions apply to the tri-colored bat. As a result of this analysis, we found that the outcome of the prudency determination would have remained the same under either situation.
Therefore, in accordance with 50 CFR 424.12(a)(1), we determine that designation of critical habitat is not prudent for the tricolored bat.
We have scheduled a public informational meeting with a public hearing on this proposed rule for the tricolored bat. We will hold the public informational meeting and public hearing on the date and time listed above under
The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding this proposed rule. While the public informational meeting will be an opportunity for dialogue with the Service, the public hearing is not: It is a forum for accepting formal verbal testimony. In the event there is a large attendance, the time allotted for oral statements may be limited. Therefore, anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal, or U.S. mail (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We solicited information, provided updates and invited participation in the SSA process in emails sent to Tribes, nationally, in April 2020 and November 2020. We will continue to work with Tribal entities during the development of a final rule for the tricolored bat.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service's Species Assessment Team and the Pennsylvania Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to approve and implement Framework Adjustment 7 to the Tilefish Fishery Management Plan, which includes 2022-2024 specifications for the golden tilefish fishery for fishing years 2022-2024, a change to the annual specifications process, and a change to the start of the golden tilefish fishing year. The proposed action is necessary to establish allowable harvest levels and other management measures to prevent overfishing while allowing optimum yield, consistent with the Magnuson-Stevens Fishery Conservation and Management Act and the Tilefish Fishery Management Plan. This action is intended to ensure measures are based on the best scientific information available and increase flexibility, where possible, for the tilefish fishery.
Comments must be received on September 29, 2022.
You may submit comments on this document, identified by NOAA-NMFS-2022-0087, by either of the following method:
•
Copies of the Environmental Assessment prepared for this action, and other supporting documents for these proposed specifications, are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901. These documents are also accessible via the internet at
Laura Hansen, Fishery Management Specialist, (978) 281-9225.
The Mid-Atlantic Fishery Management Council (Council) manages the golden tilefish fishery under the Tilefish Fishery Management Plan (FMP), which outlines the Council's process for establishing annual specifications. The FMP requires the Council to recommend acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), total allowable landings (TAL), and other management measures, currently for up to 3 years at a time. The directed fishery is managed under an individual fishing quota (IFQ) program, with small amounts of non-IFQ catch allowed under an incidental permit. The Council's Scientific and Statistical Committee (SSC) provides an ABC recommendation to the Council to derive these catch limits. The Council makes recommendations to NMFS that cannot exceed the recommendation of its SSC. The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to ensure that they achieve the FMP objectives and are consistent with all applicable laws. Following this review, NMFS publishes the final specifications in the
In 2020, the Council set specifications for 2021 and interim specifications for 2022. The 2022 interim specifications were set because of potential timing constraints associated with the 2021 management track stock assessment. The interim 2022 measures provided management measures for the start of the fishing year in the event that there was insufficient time for the Council to approve, and for us to implement, new specifications for the start of the 2022 fishing year (
After considering recommendations from the SSC, Tilefish MC, Tilefish Advisory Panel, and members of the public, the Council recommended specifications summarized in the table below. The new 2022 ABC represents a 20-percent increase from the interim
Golden tilefish regulations currently allow multi-year annual specifications to be set for up to 3 years at a time. This action would modify the annual specifications process, so that specifications could be set for the maximum number of years needed to be consistent with the Northeast Region Coordinating Council approved stock assessment schedule. Multi-year regulations have been implemented for all fisheries managed by the Council to relieve some of the administrative demands on the Council and NMFS associated with annual specification requirements. Longer-term specifications also provide greater regulatory consistency and predictability to the fishing sectors. This action would provide additional flexibility as specifications could be set to cover the time period until a new golden tilefish stock assessment is available. Stock assessments provide critical information for setting specifications, and in the period between assessments, there often is no new information that would lead to changes to annual specifications. The Council will continue its process of reviewing multi-year specifications each year to determine if any modifications are necessary.
Current regulations define the golden tilefish fishing year as the 12-month period beginning with November 1. This action would change the fishing year to match the calendar year and would start on January 1. The current fishing year was initially established when the FMP was adopted in 2001 to avoid adding to the administrative burden associated with the start of the calendar year. However, improvements that have since been made in permitting and data-reporting systems have reduced this concern. Changing the fishing year to the calendar year will also match the period used in the stock assessments and the cost recovery program for the golden tilefish IFQ fishery.
The 2022 fishing year began on November 1, 2021, and is operating under interim specifications. If this rule is finalized as proposed, the 2022 fishing year would run through December 31, 2022. The 2023 fishing year, and all subsequent fishing years, would begin on January 1.
Pursuant to section 304(b)(1)(A) of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tilefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
For Regulatory Flexibility Act purposes, NMFS has established a size standard for small businesses, including their affiliated operations, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as small 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 $11.0 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 3 years from 2018 through 2020. Data was used from 2018 to 2020, not 2021, because 2020 is the most recent full year of ownership data available. The Small Business Administration has established size standards for all other major industry sectors in the U.S., including defining for-hire fishing firms (NAICS code 487210) as small when their receipts are equal to or less than $8 million.
The measures proposed in this action apply to vessels that hold a federal permit for golden tilefish. According to the ownership database, 143 affiliate firms landed golden tilefish during the 2018-2020 period, with 141 of those business affiliates categorized as small business and 2 categorized as large business. The 3-year average (2018-2020) combined gross receipts (all species combined) for all small entities only was $132,194,765, and the average golden tilefish receipts was $4,973,718. This indicates that golden tilefish revenues contributed approximately 3.76 percent of the total gross receipts for these small entities. The 2 firms that were categorized as large entities had combined gross receipts of $53,450,954 and combined golden tilefish receipts of $417; as such, golden tilefish receipts as a proportion of gross receipts is <0.01 percent.
In general terms, the active commercial golden tilefish fishery participants (
A business primarily engaged in for-hire fishing activity is classified as a small business if it has combined annual receipts not in excess of $8 million. According to the vessel ownership data, 361 for-hire affiliate firms generated revenues from fishing recreationally for various species during the 2018-2020 period; all of those
The proposed measures in this action are administrative and the proposed specifications should have no negative impacts on these small businesses. This action will not have a significant economic impact on a substantial number of small entities.
This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(a)
(1)
U.S. Codex Office, USDA.
Notice of public meeting and request for comments.
The U.S Codex Office is sponsoring a virtual public meeting on October 27, 2022. The objective of the public meeting is to provide information and receive public comments on agenda items and draft U.S. positions to be discussed at the 53rd Session of the Codex Committee on Food Hygiene (CCFH) of the Codex Alimentarius Commission, which will take place November 29-December 2, 2022, with the report adoption on December 8, 2022. The U.S. Manager for Codex Alimentarius and the Acting Deputy Under Secretary for Trade and Foreign Agricultural Affairs recognize the importance of providing interested parties the opportunity to obtain background information on the 53rd Session of the CCFH and to address items on the agenda.
The public meeting is scheduled for October 27, 2022, from 1:00 p.m.-4:00 p.m. EST.
The public meeting will take place via video teleconference only. Documents related to the 53rd Session of the CCFH will be accessible via the internet at the following address:
Ms. Jenny Scott, U.S. Delegate to the 53rd Session of the CCFH, invites interested U.S. parties to submit their comments electronically to the following email address:
For further information about the 53rd Session of the CCFH, contact U.S. Delegate, Ms. Jenny Scott at
The Codex Alimentarius Commission was established in 1963 by two United Nations organizations: the Food and Agriculture Organization and the World Health Organization. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure fair practices in the food trade.
The Terms of Reference of the Codex Committee on Food Hygiene (CCFH) are:
(a) to draft basic provisions on food hygiene applicable to all food;
(b) to consider, amend if necessary, and endorse provisions on hygiene prepared by Codex commodity committees and contained in Codex commodity standards, and
(c) to consider, amend if necessary, and endorse provisions on hygiene prepared by Codex commodity committees and contained in Codex codes of practice unless, in specific cases, the Commission has decided otherwise, or
(d) to draft provisions on hygiene applicable to specific food items or food groups, whether coming within the terms of reference of a Codex commodity committee or not;
(e) to consider specific hygiene problems assigned to it by the Commission;
(f) to suggest and prioritize areas where there is a need for microbiological risk assessment at the international level and to develop questions to be addressed by the risk assessors; and
(g) to consider microbiological risk management matters in relation to food hygiene and in relation to the risk assessment of FAO and WHO.
The CCFH is hosted by the United States of America.
The following items on the agenda for the 53rd Session of the CCFH will be discussed during the public meeting:
At the public meeting on October 27, 2022, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to Ms. Jenny Scott, U.S. Delegate to the 53rd Session of the CCFH (see
Public awareness of all segments of rulemaking and policy development is important. Consequently, the U.S.
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
The meetings will be held virtually via ZOOM. Links are below and will be available at:
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene public meetings on October 27, 2022; January 26, 2023; April 27, 2023; and, July 27, 2023, at 2:00 p.m. ET. These meetings serve to fulfill the CSB's requirement to hold a minimum of four public meetings for Fiscal Year 2023 pursuant to 40 CFR 1600.5(c). The Board will review the CSB's progress in meeting its mission and as appropriate highlight safety products newly released through investigations and safety recommendations.
Hillary Cohen, Communications Manager, at
Commission on Civil Rights.
Notice; revision to meeting date.
The Commission on Civil Rights published a notice in the
Brooke Peery,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the respective determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on wooden bedroom furniture from the People's Republic of China (China) would likely lead to
Applicable September 14, 2022.
Krisha Hill, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4037.
On January 4, 2005, Commerce published in the
As a result of its review, Commerce determined, pursuant to sections 751(c)(1) and 752(c) of the Act, that revocation of the
The product covered by the
The subject merchandise includes the following items: (1) wooden beds such as loft beds, bunk beds, and other beds; (2) wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds; (3) night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets; (4) dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser; (5) chests-on-chests,
The scope of the
Imports
As a result of the respective determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as the only reminder to parties subject to an APO of their responsibility concerning the return, destruction, or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
This five-year sunset review and notice are in accordance with section 751(c) of the Act and the notice is published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
United States Section, USMCA Secretariat, International Trade Administration, Department of Commerce.
Notice of USMCA request for panel review.
A Request for Panel Review was filed on behalf of the Government of Canada, the Governments of Alberta, British Columbia, New Brunswick, Ontario, and Québec; Alberta Softwood Lumber Trade Council, British Columbia Lumber Trade Council, Conseil de l'industrie forestière du Québec, and Ontario Forest Industries Association; Canfor Corporation, Fontaine, Inc., Mobilier Rustique (Beauce) Inc., J.D. Irving, Limited, Resolute FP Canada Inc., Tolko Marketing and Sales Ltd. and Tolko Industries Ltd., Gilbert Smith Forest Products, and West Fraser Mills Ltd. with the United States Section of the USMCA Secretariat on September 8, 2022, pursuant to USMCA Article 10.12. Panel Review was requested of the U.S. International Trade Administration's Final Results in the 2020 Countervailing Duty Administrative Review of Certain Softwood Lumber from Canada, which was published in the
Vidya Desai, United States Secretary,
Article 10.12 of Chapter 10 of USMCA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to review the trade remedy determination being challenged and issue a binding Panel Decision. There are established USMCA
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 44 no later than 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is October 11, 2022);
(b) A Party, an investigating authority or other interested person who does not file a Complaint but who intends to participate in the panel review shall file a Notice of Appearance in accordance with Rule 45 no later than 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is October 24, 2022);
(c) The panel review will be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 17, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable September 27, 2021.
Charles DeFilippo, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3797.
On October 15, 2018, Commerce published its
Mandatory respondents Pacific Pipe, Saha Thai, and Thai Premium challenged Commerce's
In the
In December 2020, the CIT again remanded the issue to Commerce, holding that Commerce's
In the
In its decision in
Because there is now a final court judgment, Commerce is amending its
Because Pacific Pipe, Saha Thai, and Thai Premium each have a superseding cash deposit rate,
At this time, Commerce remains enjoined by CIT order from liquidating entries that: were produced and exported by Pacific Pipe, Saha Thai, and Thai Premium, and were entered, or withdrawn from warehouse, for consumption during the period March 1, 2016, through February 28, 2017. These entries will remain enjoined unless the injunction is lifted by the court, pursuant to the terms of the injunction, during the pendency of any appeals process.
In the event the CIT's ruling is upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on all appropriate entries covered by this review from Pacific Pipe, Saha Thai, and Thai Premium when the importer-specific
Commerce's “reseller policy” will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
United States Section, USMCA Secretariat, International Trade Administration, Department of Commerce.
Notice of USMCA request for panel review.
A Request for Panel Review was filed on behalf of the Government of Canada; Conseil de l'industrie forestière du Québec, Ontario Forest Industries Association; Canfor Corporation, Fontaine, Inc., Mobilier Rustique (Beauce) Inc., Resolute FP Canada Inc., Tolko Marketing and Sales Ltd., Tolko Industries Ltd., Gilbert Smith Forest Products, and West Fraser
Vidya Desai, United States Secretary, USMCA Secretariat, Room 2061, 1401 Constitution Avenue NW, Washington, DC 20230, 202-482-5438.
Article 10.12 of Chapter 10 of USMCA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to review the trade remedy determination being challenged and issue a binding Panel Decision. There are established USMCA
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 44 no later than 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is October 11, 2022);
(b) A Party, an investigating authority or other interested person who does not file a Complaint but who intends to participate in the panel review shall file a Notice of Appearance in accordance with Rule 45 no later than 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is October 24, 2022);
(c) The panel review will be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that certain producers/exporters of narrow woven ribbons with woven selvedge (ribbons) from the People's Republic of China (China) received countervailable subsidies during the period of review (POR) January 1, 2020, through December 31, 2020.
Applicable September 14, 2022.
Terre Keaton Stefanova, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1280.
On June 9, 2022, Commerce published the
The products covered by the order are narrow woven ribbons with woven selvedge from China. The merchandise subject to this order is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) statistical categories 5806.32.1020; 5806.32.1030; 5806.32.1050 and 5806.32.1060. Subject merchandise also may enter under subheadings 5806.31.00; 5806.32.20; 5806.39.20; 5806.39.30; 5808.90.00; 5810.91.00; 5810.99.90; 5903.90.10; 5903.90.25; 5907.00.60; and 5907.00.80 and under statistical categories 5806.32.1080; 5810.92.9080; 5903.90.3090; and 6307.90.9891. The HTSUS statistical categories and subheadings are provided for convenience and customs purposes; however, the written description of the merchandise under the order is dispositive.
We received no comments from interested parties on the
Normally, Commerce discloses to interested parties the calculations performed in connection with the final results of review within five days of a 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
Consistent with section 751(a)(1) of the Act and 19 CFR 351.212(b)(2), upon completion of the administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. 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
In accordance with section 751(a)(2)(C) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount shown above, for the companies listed above, for shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, Commerce will instruct CBP to continue to collect cash deposits at the all-others rate or the most recent company-specific rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these final results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on glycine from the People's Republic of China (China) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD order.
Applicable September 14, 2022.
Harrison Tanchuck, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7421.
On March 29, 1995, Commerce published in the
As a result of its review, pursuant to sections 751(c)(1) and 752(c) of the Act, Commerce determined that revocation of the
On September 2, 2022, the ITC published its determination, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the
The product covered by the
As a result of the determinations by Commerce and the ITC that revocation of the
U.S. Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of continuation of the
This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of
This five-year sunset review and this notice are in accordance with section 751I and (d)(2) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 17, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable September 27, 2021.
Charles DeFilippo, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3797.
On November 20, 2019, Commerce published its
Mandatory respondent Saha Thai challenged Commerce's
In the
In its decision in
Because there is now a final court judgment, Commerce is amending its
Because Saha Thai has a superseding cash deposit rate,
Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise, where appropriate,
Commerce's “reseller policy” will apply to entries of subject merchandise during the POR produced by Saha Thai for which Saha Thai did not know that the merchandise they sold to the intermediary (
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Tilefish Advisory Panel and Communication and Outreach Advisory Panel will meet jointly to discuss future outreach efforts to improve awareness of, and compliance with, private recreational tilefish permitting and reporting requirements.
The meeting will be held on Wednesday, September 28, 2022, from 10 a.m. to 12 p.m. EDT. For agenda details, see
The meeting will be held via webinar. Webinar connection, agenda items, and any additional information will be available at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is to solicit input from the Tilefish and the Communication and Outreach Advisory Panels on ways to improve angler awareness of, and compliance with, tilefish permitting and reporting requirements. Advisory Panel input on both methods of communicating with the target audience as well as the content and clarity of communication is requested and will be considered by the Mid-Atlantic Fishery Management Council at the October meeting.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shelley Spedden at the Council Office, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold a meeting of the Outreach and Communications Advisory Panel (AP) October 4-5, 2022, and a meeting of the Mackerel Cobia Advisory Panel October 5-6, 2022. The meetings will be held in Charleston, SC.
The Outreach and Communications AP meeting will be held October 4, 2022, from 1:30 p.m. until 5 p.m. and October 5, 2022, from 9 a.m. until 12 p.m. The Mackerel Cobia AP meeting will be held from 1:30 p.m. until 5 p.m. on October 5, 2022, and from 9 a.m. until 5 p.m. on October 6, 2022.
The meetings are open to the public and will also be available via webinar. Registration is required. Webinar registration, an online public comment form, and briefing book materials will be available two weeks prior to the meeting at:
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meetings.
The National Marine Fisheries Service will hold a series of in-person Dolphin (
The workshop will be held on Tuesday, October 4, 2022, from 5:30 p.m. until 8:30 p.m. EDT, on Wednesday, October 5, 2022, from 5:30 p.m. until 8:30 p.m. EDT, and on Thursday, October 6, 2022, from 5:30 p.m. until 8:30 p.m. EDT.
Cassidy Peterson, Management Strategy Evaluation Specialist, NMFS Southeast Fisheries Science Center, phone (910) 708-2686; email:
In collaboration with the South Atlantic Fishery Management Council, NMFS is embarking on a Management Strategy Evaluation (MSE) to guide dolphin (
Agenda items for the meeting include: developing an understanding of management procedures and management strategy evaluation, developing conceptual management objectives, and clarifying uncertainties that should be addressed within the framework.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to Cassidy Peterson (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 of vendor to provide fishing year 2023 cage tags.
NMFS informs surfclam and ocean quahog individual transferable quota allocation holders that they will be required to purchase their fishing year 2023 (January 1, 2023-December 31, 2023) cage tags from the National Band and Tag Company. The intent of this notice is to comply with regulations for the Atlantic surfclam and ocean quahog fisheries and to promote efficient distribution of cage tags.
Aimee Ahles, Fishery Information Specialist, (978) 281-9373.
The Federal Atlantic surfclam and ocean quahog fishery regulations at 50 CFR 648.77(b) authorize the Regional Administrator of the Greater Atlantic Region, NMFS, to specify in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Caribbean Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) will hold a public virtual meeting
The public virtual meeting will be held on October 4, 2022, from 10 a.m. to 5 p.m., and October 5, 2022, from 10 a.m. to 5 p.m., Atlantic Standard Time (AST).
You may join the SSC 2-day public virtual meeting via Zoom by entering the following address:
One tap mobile
+19399450244,,87345855856#,,,,*793249# Puerto Rico
+17879451488,,87345855856#,,,,*793249# Puerto Rico
Dial by your location
+1 939 945 0244 Puerto Rico
+1 787 945 1488 Puerto Rico
+1 787 966 7727 Puerto Rico
+1 312 626 6799 US (Chicago)
+1 346 248 7799 US (Houston)
+1 646 558 8656 US (New York)
+1 669 900 9128 US (San Jose)
+1 253 215 8782 US (Tacoma)
+1 301 715 8592 US (Washington DC)
In case there are problems and we cannot reconnect via Zoom, the meeting will continue via GoToMeeting. You may join from a computer, tablet or smartphone by entering the following address:
You can also dial in using your phone.
Join from a video-conferencing room or system.
Miguel Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918-1903, telephone: (787) 766-5926.
The following items included in the tentative agenda will be discussed:
The order of business may be adjusted as necessary to accommodate the completion of agenda items. The meeting will begin on October 4, 2022, at 10 a.m., and will end on October 5, 2022, at 5 p.m. Other than the start time, interested parties should be aware that discussions may start earlier or later than indicated, at the discretion of the Chair. In addition, the meeting may be completed prior to the date established in this notice.
For any additional information on this public virtual meeting, please contact Dr. Graciela García-Moliner, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918-1903, telephone: (787) 403-8337.
Consumer Product Safety Commission.
Notice.
In the
Submit comments on the proposed collection of information by October 14, 2022.
Submit comments about this request by email:
Bretford Griffin, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7037, or by email to:
The June 10 Notice sought comment on CPSC's burden estimate for the Beta Pilot Test. 87 FR 35513, 35518-20. CPSC received no comment on the burden estimates provided. CPSC now seeks approval of a new collection of information for the Beta Pilot test, which contains information collection requirements that are subject to public comment and review by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
a title for the collection of information;
a summary of the collection of information;
a brief description of the need for the information and the proposed use of the information;
a description of the likely respondents and proposed frequency of response to the collection of information;
an estimate of the burden that shall result from the collection of information; and
notice that comments may be submitted to the OMB.
As set forth in section VI.B of the June 10 Notice, the requirement to create and maintain certificates, including the data elements, is set forth in section 14 of the Consumer Product Safety Act (CPSA). Section 14(a) of the CPSA requires manufacturers (including importers) and private labelers of certain regulated consumer products manufactured outside the United States to test and issue a certificate certifying such products as compliant with applicable laws and regulations before importation. 15 U.S.C. 2063(a). Section 14(g)(1) of the CPSA describes the data required on a certificate. Section 14(g)(3) requires a certificate to accompany the applicable product or shipment of products covered by the certificate, and that certifiers furnish the certificate to each distributor or retailer of the product. Upon request, certificates must also be furnished to CPSC and CBP. Section 14(g)(4) provides that “[i]n consultation with the Commissioner of Customs, the Commission may, by rule, provide for the electronic filing of certificates under this section up to 24 hours before arrival of an imported product.” The Beta Pilot test described in this collection of information is in preparation for a rulemaking to implement section 14(g)(4) of the CPSA. 15 U.S.C. 2063(g)(4).
Because certificates are required by statute, this analysis focuses on the burden for CPSC to accept, and importers to provide, certificate data elements electronically at the time of entry filing, and not to collect and maintain certificate data more generally. Importer requirements in the Beta Pilot test for providing certificate data electronically at the time of entry filing fall within the definition of “collection of information,” as defined in 44 U.S.C. 3502(3).
CPSC used information provided by the previous Alpha Pilot test participants to inform the estimated burden for the Beta Pilot test. The burden from participating in the eFiling Beta Pilot test can be broken down into the burden of preparing for participation in the Pilot, the burden of maintaining the data elements separately, and, as compared to the Alpha Pilot test, the additional burden of including the dates of manufacturing and lab testing. Based on feedback from the Alpha Pilot test participants, we also assume that if we have 50 Beta Pilot test participants, approximately 90 percent of them, or 45 respondents, will opt to use the Product Registry and Reference PGA Message Set exclusively, while 5 participants will opt to use the Full PGA Message Set exclusively.
For the 45 participants opting to use the Product Registry and Reference PGA Message Set, we estimate that there will be approximately 8,764 burden hours to complete the information collection burden associated with Beta Pilot test participation, and maintain the data elements, including the dates of manufacturing and lab testing. Based on feedback from Alpha Pilot test participants, participant staff costs for this burden will be about $383,000 or approximately $44 per hour ($382,990/8,764).
For the 5 participants opting to use the Full PGA Message Set, we estimate 452 hours to complete the pilot and maintain the data elements, including for each product the dates of manufacture and lab testing. The estimated associated participant staff costs will be about $21,800, or approximately $48 per hour ($21,774/452 hours).
The estimated total burden for participation in the Beta Pilot test is 9,217 hours, with an estimated cost of $404,800, or $44 per hour ($404,764/9,217).
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted the information collection requirements to the OMB for review.
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be transferred to SRC, Inc. in accordance with the CBI regulations. SRC, Inc. has been awarded a contract to perform work for the Office of Pollution Prevention and Toxics (OPPT), and access to this information will enable SRC, Inc. to fulfill the obligations of the contract.
SRC, Inc. will be given access to this information on or before September 19, 2022.
William Northern, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-1493 email address:
This action applies to the public in general. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-EPA-HQ-OPP-2022-0164, is available at
Under Contract No. 68HERH19D0022, Task Order 68HERH19F0230, SRC will review data submitted to OPP under FIFRA for use in risk evaluations that are being developed by OPPT under the Toxic Substance Control Act. The task order ends on June 20, 2024.
This contract involves consultants, but they will not be handling FIFRA CBI under this task.
OPP has determined that the contract described in this document involves work that is being conducted in connection with FIFRA in that pesticide chemicals will be the subject of certain evaluations to be made under this contract. These evaluations may be used in subsequent regulatory decisions under FIFRA.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA under FIFRA sections 3, 4, 6, and 7 and under FFDCA sections 408 and 409.
In accordance with the requirements of 40 CFR 2.307(h)(3), the contract with SRC, Inc. prohibits use of the information for any purpose not specified in this contract; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the contractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) hereby announces its order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1 and Table 1A of Unit II, pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows an April 28, 2022,
The cancellations are effective September 14, 2022.
Christopher Green, Registration Division
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2022-0223, is available at
This notice announces the cancellation, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a). These registrations are listed in sequence by registration number in Table 1 and Table 1A of this unit.
The registration listed in Table 1A of Unit II, requested the effective date of cancellation to be, March 3, 2022.
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 and Table 1A of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in this unit.
The Agency received seven comments on the notice regarding the registrations containing the ingredient chlorpyrifos. The chlorpyrifos registrations have been removed from this cancellation order. The cancellation order and comments received for the registrations containing the ingredient chlorpyrifos can be found in the cancellation order, published in the
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)), EPA hereby approves the requested cancellations of the registrations identified in Table 1 and Table 1A of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Table 1 and Table 1A of Unit II, are canceled. The effective date of the cancellation listed in Table 1A of Unit II, is effective March 3, 2022. The effective date of the cancellations in Table 1 of Unit II, that are the subject of this notice is September 14, 2022. Any distribution, sale, or use of existing stocks of the products identified in Table 1 and Table 1A of Unit II, in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI, will be a violation of FIFRA.
FIFRA section 6(f)(1) (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
The notice of receipt for this action was published for comment in the
Existing stocks are those stocks of registered pesticide products which are currently in the United States, and which were packaged, labeled, and released for shipment prior to the effective date of the cancellation action. The existing stocks provisions for the products subject to this order are as follows.
For the registration MT-120005, listed in Table 1A of Unit II, the registrant requested the effective date of cancellation to be March 3, 2022. The registrant may continue to sell and distribute existing stocks of the product listed in Table 1A of Unit II, until March 3, 2023. Thereafter, the registrant is prohibited from selling or distributing the product listed in Table 1A of Unit II, except for export in accordance with FIFRA section 17 (7 U.S.C. 136o), or proper disposal.
The registrants may continue to sell and distribute existing stocks of the products listed in Table 1 of Unit II, until September 14, 2023, which is 1 year after the publication of the Cancellation Order in the
Persons other than the registrants may sell, distribute, or use existing stocks of products listed in Table 1 and Table 1A of Unit II, until existing stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the cancelled products.
Federal Deposit Insurance Corporation (FDIC).
Agency information collection activities: submission for OMB review; comment request.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995, invites the general public and other Federal agencies to take this opportunity to comment on the request to renew the existing information collections described below (OMB Control No. 3064-0092, -0113 and -0174). The notice of the proposed renewal for these information collections was previously published in the
Comments must be submitted on or before October 14, 2022.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Manny Cabeza, Regulatory Counsel, 202-898-3767,
1.
2.
3.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to take this opportunity to comment on the renewal of the existing information collections described below (OMB Control No. 3064-0139, -0169, -0189, and—0202).
Comments must be submitted on or before November 14, 2022.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Manny Cabeza, Regulatory Counsel, 202-898-3767,
1.
There is no change in the method or substance of the collection. The overall reduction in burden hours is the result of economic fluctuation. In particular, the decline in the estimated overall annual time burden from 100 hours in 2021 to 42 hours in 2022 is the result of a reduction in the number of banks and NGEPs reporting.
2.
There is no change in the method or substance of the collection. The overall reduction in burden hours is due to economic fluctuations. In particular, no private capital investors have attempted to bid on failed banks in the years since the last financial crisis. FDIC is using a placeholder estimate of 1 respondent in recognition that a private capital group could participate in the bidding process.
3.
The Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA), enacted on May 24, 2018, amended certain aspects of the company-run stress-testing requirements in section 165(i)(2) of the Dodd-Frank Act. Specifically, section 401 of EGRRCPA raises the minimum asset threshold from $10 billion
The FDIC's Final Rule
The aspects of part 325 that constitute an information collection are those that require a banking organization to (i) file stress test reports to be filed periodically with the FDIC and the Board of Governors of the Federal Reserve System (the Board) in the time, manner, and form specified by the FDIC (12 CFR part 325.6); (ii) establish and maintain a system of controls, oversight, and documentation, including policies and procedures that describe the covered bank's stress test practices and methodologies, as well as processes for updating such bank's stress test practices, as well as specific calculations that must be made by the banking organization during its stress tests (12 CFR part 325.5); and (iii) publish a summary of the results of its stress tests (12 CFR part 325.7).
On May 17, 2012, the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), and the Board of Governors of the Federal Reserve (FRB), published the 2012 Interagency Guidance on the use of stress testing as a means to better understand the range of a banking organization's potential risk exposures. The guidance is intended for IDIs with total consolidated assets of more than $10 billion
The aspects of the 2012 Interagency Guidance that constitute an information collection are the provisions that state a banking organization should (i) have a stress testing framework that includes clearly defined objectives, well-designed scenarios tailored to the banking organization's business and risks, well documented assumptions, conceptually sound methodologies to assess potential impact on the banking organization's financial condition (Section II); (ii) maintain an internal summary of test results to document at a high level the range of its stress testing activities and outcomes, as well as proposed follow-up actions (Section III); and (iii) have policies and procedures for a stress testing framework (Section VI).
There has been no change in the substance or methodology of this information collection. The 1,386 hour increase in total estimated annual burden from 4,340 hours in 2019 to 5,726 hours currently is driven by an increase in the number of FDIC-supervised IDIs that have at least $10 billion in total consolidated assets, which results in an increase in the estimated number of respondents for IC 4 and IC 5 from 39 to 56 each, as well as an increase in the estimated number of annual respondents in IC 6 from 1 to 5. This change is attenuated by the change in stress testing frequency for institutions subject to stress testing requirements under the Dodd-Frank Act, as amended by EGRRCPA, from annually to biennially.
4.
There is no change in the method or substance of the collection. The overall reduction in burden hours arises almost entirely from the reduction in the number of respondents for ICs 1-3 capturing the implementation burdens, especially the reduction in the number of covered institutions of Highest Complexity. The reduction for that IC alone is almost 400,000 hours per year.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than September 29, 2022.
1.
B.
1.
Board of Governors of the Federal Reserve System.
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites
Comments must be submitted on or before November 14, 2022.
You may submit comments, identified by FR 2030, FR 2030a, FR 2056, FR 2083, FR 2083A, FR 2083B, FR 2083C, FR 2086, FR 2086a, or FR 2087, by any of the following methods:
• Agency Website:
•
•
•
All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
During the comment period for this proposal, a copy of the proposed PRA OMB submission, including the draft reporting form and instructions, supporting statement, and other documentation, will be made available on the Board's public website at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
• FR 2083—Cover sheet, with general information and instructions detailing the information to be submitted according to the type of applicant bank,
• FR 2083A—Application form for the purchase of Federal Reserve Bank stock by state banks (except mutual savings banks) and by national banks converting into state member banks,
• FR 2083B—Application form for the purchase of Federal Reserve Bank stock by mutual savings banks, and
• FR 2083C—Certificate of Organizers or Directors certifying that the information being submitted is true and complete, and the proposed capital is not impaired.
A. Remove language from questions 2f. and 3 in Section II Financial and Managerial Information for currently operating banks. The first sentence of question 2f. would be removed, reducing the Applicant's Interagency Biographical and Financial Report (FR 2081c; OMB No. 7100-0134) filing obligations for principals, as defined in footnote 1 of the form, owning less than 10 percent of the Applicant or the Applicant's parent company. Language in the second sentence of question 3 would be removed, which would increase the amount of information received on the Interagency Biographical and Financial Report for any proposed new officers or directors of the Applicant or the Applicant's parent company.
(a) These revisions would provide more information on shareholders, directors, and executive officers with greater control over the Applicant and also reduce the amount of information collected on shareholders with less decision-making authority to allow Federal Reserve staff to better assess the general character of the Applicant's management as provided by the statutory factors of the Board's Regulation H.
B. Add the requirement to include an updated copy of the Applicant's shareholder list reflecting any ownership changes or additions after achieving membership for currently operating banks.
(a) This revision would allow staff to determine the total number of shares owned by each shareholder and the relationships amongst the shareholders in order to better assess which shareholder(s) exercise control over the Applicant and to assist the Federal Reserve staff in better assessing the general character of the Applicant's management as provided by Regulation H.
C. Add two footnotes and one clarifying note in the instructions to direct Applicants to additional resources when completing the application.
The application form for an adjustment in a member bank's holdings of Federal Reserve Bank stock (FR 2056) requires an indication of the capital and surplus of the bank as of the date of application and an indication of the number of shares held and the number of shares to be acquired or canceled. A completed application form must be submitted for each required adjustment by the survivor member bank due to legal merger or other consolidation as a result of Regulation I. The amount of Federal Reserve Bank stock actually held by the member bank is determined by the Reserve Bank through its monitoring of the member bank's capital accounts reported quarterly on the Consolidated Reports of Condition and Income (Call Report) (FFIEC 031, FFIEC 041, and FFIEC 051; OMB No. 7100-0036). The Federal Reserve Bank stock applications are distributed by the Federal Reserve Banks and the information collected enables them to account for required subscription, adjustment, or cancellation payments to and from the System and for dividends paid by the System on any outstanding stock.
a. Add dollar amounts of surviving commercial banks' perpetual preferred stock and related surplus, common stock, paid-in surplus, and retained earnings and accumulated other comprehensive income.
i. These revisions provide information needed to process these transactions.
a. Remove the requirement to include Charter Number and add the requirement to include ABA number instead.
i. This revision is intended to simplify the information required.
a. Remove the requirement to include Charter Number.
i. This revision is intended to make the process more efficient by removing a field that is no longer needed.
Information submitted to the Board under these collections may be
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division has submitted to the Office of Management and Budget (OMB) a request to review and approve a revision of a previously approved information collection requirement regarding Federal Acquisition Regulation part 46 requirements.
Submit comments on or before October 14, 2022.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Additionally, submit a copy to GSA through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0077, Federal Acquisition Regulation Part 46 Requirements
DoD, GSA, and NASA are combining OMB Control Nos. for the Federal Acquisition Regulation (FAR) by FAR part. This consolidation is expected to improve industry's ability to easily and efficiently identify burdens associated with a given FAR part. The review of the information collections by FAR part allows improved oversight to ensure there is no redundant or unaccounted for burden placed on industry. Lastly, combining information collections in a given FAR part is also expected to reduce the administrative burden associated with processing multiple information collections.
This justification supports the revision of OMB Control No. 9000-0077 and combines it with the previously approved information collections under OMB Control No. 9000-0187, with the new title “Federal Acquisition Regulation Part 46 Requirements”. Upon approval of this consolidated information collection, OMB Control No. 9000-0187 will be discontinued. The burden requirements previously approved under the discontinued number will be covered under OMB Control No. 9000-0077.
This clearance covers the information that contractors may be required to submit to comply with the following FAR clauses:
These FAR clauses require the contractor to provide and maintain an inspection system that is acceptable to the Government, and to keep complete records of all inspection work performed and make it available to the Government. These clauses give the Government the right to inspect and test all work.
Records required under these clauses are kept as a part of a contractor's normal business operations. To ensure they provide a quality product or service, every business must have standards and methods for reviewing or inspecting the quality of their product or service. These standards will differ by industry and the complexity of the product or service provided.
The Government relies on a contractor's existing quality assurance system for contracts for commercial products. The Government relies on the contractor to accomplish all inspection and testing needed to ensure that acquired commercial services conform to contract requirements before they are tendered to the Government. See FAR 12.208 and 46.202-1. Likewise, when the contract amount is expected to be less than the simplified acquisition threshold, these clauses do not apply.
The FAR “inspection clauses” are used for quality assurance depending on the type of contract, or the product or service being provided. These clauses do not require the transmittal or sending of documentation to the Government, but they have record keeping requirements. The Government may
The information is used to assure that supplies and services provided under Government contracts conform to contract requirements.
• FAR 52.246-15, Certificate of Conformance. This clause requires the contractor to complete and sign a certificate of conformance (CoC). This clause is used in solicitations and contracts for supplies or services at the discretion of the contracting officer when it is in the Government's interest, small losses would be incurred in the event of a defect; or because of the contractor's reputation or past performance, or when it is likely that the supplies or services furnished will be acceptable and any defective work would be replaced, corrected, or repaired without contest.
• FAR 52.246-26, Reporting Nonconforming Items. This clause requires contractors to provide written notification to the contracting officer within 60 days of becoming aware or having reason to suspect, such as through inspection, testing, record review, or notification from another source (
This information will be used by the Government to address and detect nonconforming and counterfeit items. Perhaps more important, this information will be available to businesses for searching prior to placing orders, thus enabling the avoidance of purchasing counterfeit items in the first place.
A 60-day notice was published in the
Office of Planning, Research, and Evaluation, Administration for Children and Families, Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) is proposing a new data collection activity for the Formative Evaluation of the Demonstration Grants to Strengthen the Response to Victims of Human Trafficking in Native Communities (VHT-NC) Program. The overarching goals of the formative evaluation are to understand the context in which the VHT-NC projects are implemented, the projects' goals, and the paths they take to achieve their goals. The proposed data collection will include semi-structured interviews with project staff, project participants, and key partners.
You can obtain copies of the proposed collection of information and submit comments by emailing
The proposed data collection will include semi-structured interviews with VHT-NC project staff, project participants (adults who have received assistance from the VHT-NC project), and key project partners. Interviews with project staff and partners will be conducted individually or, if appropriate and requested by respondents, in small groups. Interview topics will include community context, project goals and design, organizational and staff characteristics, partnerships, outreach and identification approaches, case management and service provision, survivor engagement, and community training. Interviews with project participants will be conducted individually. Participant interviews will focus on the project services and assistance received by participants, including those most helpful to healing and recovery.
Office of the Secretary, HHS.
Notice.
The U.S. Department of Health and Human Services' (HHS) Office on Women's Health (OWH) invites public and private sector organizations to apply to become a Women's Health Champion during National Women's Blood Pressure Awareness Week (NWBPAW), National Eating Disorder Awareness Week (NEDAW), National Women and Girls' HIV/AIDS Awareness Day (NWGHAAD), National Women's Health Week (NWHW), and/or other OWH observances.
Letters of interest will be accepted starting September 15, 2022, and will be reviewed periodically.
Letters of interest can be submitted via email to
Jeff Ventura. Office on Women's Health, Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services; 1101 Wootton Parkway, Rockville, MD 20852; Telephone: (202) 690-7650. Email:
Women's Health Champions can be public and/or private organizations such as those at the state, local, county, and tribal levels, non-governmental organizations, non-profit organizations, businesses, academic organizations, organizations that impact health outcomes, philanthropic organizations, and tribal organizations that identify themselves as being aligned with or promoting the goals of the observance(s).
All organizations may apply.
Organizations that work to improve health outcomes in women may apply. Social organizations that work with, and/or have access to large populations of women may apply.
Individuals are not eligible to become Women's Health Champions.
Applicants shall submit a letter of interest and identify how they support or plan to support the observance(s)'s goals. Applicants will be considered according to the organization's commitment to support those goals.
Women's Health Champions may receive recognition from OWH on
Organizations selected by OWH to be Women's Health Champions will sign a letter of understanding (LOU) with OWH outlining the terms and parameters of their support for the observance(s). Selection as a Women's Health Champion does not imply any federal endorsement of the collaborating organization's general policies, activities, or products.
Submission of a letter of interest does not guarantee acceptance as a Women's Health Champion.
Office of the Secretary, HHS.
Notice of public meeting.
The U.S. Department of Health and Human Services Office on Women's Health (OWH) is announcing a virtual listening session on the impact that COVID-19 has had on intimate partner violence (IPV). The purpose of the listening session is to exchange information about this topic and seek input from stakeholders and subject matter experts on an individual basis. OWH may use that information to inform our work in this area. Members of the general public are also invited to view the meeting.
The listening session will be held on September 28, 2022, from 10 a.m. to 12:00 p.m. Eastern Time.
• What are you seeing in terms of the pandemic's impact on IPV trends?
• What effective interventions have you identified to address IPV?
• How and when can we best engage organizations around IPV in the future?
• What are your organization's suggestions on including perspectives of underserved communities?
• What has worked well in your collaboration with government agencies and offices around IPV? Conversely, what is one key barrier you encountered?
• How can we improve trust with the communities you represent, work most closely with, and/or advocate on behalf of?
• What is your top priority related to the impact of COVID-19 on IPV?
• What should we continue to focus on?
• Are there any missed opportunities?
• How do you think we can best provide access to information related to COVID-19's impact on IPV?
I.
We invite organizations who work with victims of IPV; Federal, State, local, and tribal public health officials; and law enforcement to provide insights into the current state of IPV and the impact of the COVID-19 pandemic on IPV. Members of the general public are also invited to view the session.
II.
Office of Infectious Disease and HIV/AIDS Policy, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that the National Vaccine Advisory Committee (NVAC) will hold an in-person meeting. The meeting will be open to the public and public comment will be heard during the meeting.
The meeting will be held June 22-23, 2022. The confirmed meeting times and agenda will be posted on the NVAC website at
Instructions regarding attending this meeting will be posted online at:
Ann Aikin, Acting Designated Federal Officer at the Office of Infectious Disease and HIV/AIDS Policy, U.S. Department of Health and Human Services, Mary E. Switzer Building, Room L618, 330 C Street SW, Washington, DC 20024. Email:
Pursuant to section 2101 of the Public Health Service Act (42 U.S.C. 300aa-1), the Secretary of HHS was mandated to establish the National Vaccine Program to achieve optimal prevention of human infectious diseases through immunization and to achieve optimal prevention against adverse reactions to vaccines. The NVAC was established to provide advice and make recommendations to the Director of the National Vaccine Program on matters related to the Program's responsibilities. The Assistant Secretary for Health serves as Director of the National Vaccine Program.
The NVAC will hear presentations on COVID-19, monkeypox, influena, and polio vaccination, as well as vaccine safety, innovation, and gaps in rural vaccination coverage. Please note that agenda items are subject to change, as priorities dictate. Information on the final meeting agenda will be posted prior to the meeting on the NVAC website:
Members of the public will have the opportunity to provide comment at the NVAC meeting during the public comment period designated on the agenda. Public comments made during the meeting will be limited to three minutes per person to ensure time is allotted for all those wishing to speak. Individuals are also welcome to submit written comments in advance. Written comments should not exceed three pages in length. Individuals submitting comments should email their written comments or their request to provide a comment during the meeting to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the NIH Clinical Center Research Hospital Board.
The meeting will be held as a virtual meeting and open to the public. Individuals who plan to view the virtual meeting and need special assistance or other reasonable accommodations to view the meeting should notify the Contact Person(s) listed below in advance of the meeting. The meeting can be accessed from the NIH video
Natascha Pointer, Management Analyst, Executive Assistant to Dr. Gilman, Office of the Chief Executive Officer, National Institutes of Health Clinical Center, Bethesda, MD 20892,
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following 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.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency; Department of Homeland Security.
Notice; correction.
On August 2, 2022, FEMA published in the
Comments are to be submitted on or before October 31, 2022.
The Preliminary Flood Insurance Rate Map (FIRM), and where applicable, the Flood Insurance Study (FIS) report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA-B-2255, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed in the table below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP may only be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The communities affected by the flood hazard determinations are provided in the table below. Any request for reconsideration of the revised flood hazard determinations shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations will also be considered before the FIRM and FIS report are made final.
In the proposed flood hazard determination notice published at 87 FR 47225 in the August 2, 2022, issue of the
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below. The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of January 12, 2023 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Fish and Wildlife Service, Interior.
Notice of teleconference/web meeting.
The U.S. Fish and Wildlife Service gives notice of a teleconference/web meeting of the Theodore Roosevelt Genius Prize Advisory Council, in accordance with the Federal Advisory Committee Act.
The meeting will be held via teleconference and broadcast over the internet. To register and receive the web address and telephone number for participation, contact the Designated Federal Officer (see
Stephanie Rickabaugh, Designated Federal Officer, by telephone at (571) 421-6758, or by email at
The Theodore Roosevelt Genius Prize Advisory Council was established by the John D. Dingell, Jr., Conservation, Management, and Recreation Act, March 12, 2019 (Pub. L. 116-9); the America's Conservation Enhancement Act, October 30, 2020 (Pub. L. 116-188); and the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719). The Council's purpose is to develop recommendations for the Secretary of the Interior regarding any opportunities for technological innovation that were raised during the prize competition process to assist in addressing the statutes' six areas of concern: preventing wildlife poaching and trafficking, promoting wildlife conservation, managing invasive species, protecting endangered species, promoting nonlethal human-wildlife conflict, and reducing human-predator conflict.
This meeting is open to the public. The meeting agenda will include presentations on winning technologies from the Theodore Roosevelt Genius Prize Competitions; reports from subcommittees about opportunities for technological innovation; and opportunities for public comment. The final agenda and other related meeting information will be posted on the Council's website at
If you wish to provide oral public comment or provide a written comment for the Council to consider, contact the Council's Designated Federal Officer (see
Depending on the number of people who want to comment and the time available, the amount of time for individual oral comments may be limited. Interested parties should contact the Designated Federal Officer, in writing (see
Please make requests in advance for sign language interpreter services, assistive listening devices, or other reasonable accommodations. Please contact the Designated Federal Officer (see
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.
National Park Service, Interior.
Notice.
The Federal Bureau of Investigation (FBI), in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definition of a sacred object. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request to the FBI. If no additional claimants come forward, transfer of control of the cultural item to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to the FBI at the address in this notice by October 14, 2022.
Federal Bureau of Investigation, FBI Headquarters, Attn: Supervisory Special Agent (SSA) Randolph J. Deaton IV, Art Theft Program, 935 Pennsylvania Avenue NW, Washington, DC 20535, telephone (202) 324-5525, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of the Federal Bureau of Investigation, Washington, DC, that meets the definition of a sacred object under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
At an unknown date, one cultural item was acquired and transported to the east coast of the United States, where it became part of a private collection of Native American antiquities, art, and cultural heritage. In the spring of 2018, this item was seized by the FBI as part of a criminal investigation. Following multiple consultations with representatives of the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota, this item, a “bear mask,” was determined to be culturally affiliated with the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota and identified as a sacred object.
Officials of the Federal Bureau of Investigation have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the one cultural item is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred object and the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to the Federal Bureau of Investigation, FBI Headquarters, Attn: Supervisory Special Agent (SSA) Randolph J. Deaton IV, Art Theft Program, 935 Pennsylvania Avenue NW, Washington, DC 20535, telephone (202) 324-5525, email
The Federal Bureau of Investigation is responsible for notifying the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota that this notice has been published.
National Park Service, Department of the Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Federal Bureau of Investigation has completed an inventory of human remains and associated funerary objects and has determined that there is no cultural affiliation between the human remains and any Indian Tribe. The human remains were removed from unknown locations in the United States.
Disposition of the human remains in this notice may occur on or after October 14, 2022.
Supervisory Special Agent (SSA) Randolph J. Deaton IV, Art Theft Program, 935 Pennsylvania Avenue NW, Washington, DC 20535, telephone (202) 324-5525, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Federal Bureau of Investigation. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Federal Bureau of Investigation.
On unknown dates, human remains representing, at minimum, 138 individuals were removed from unknown locations in South Dakota, New Mexico, Arizona, and Indiana. The human remains were unearthed by Indiana “collector” Don Miller and made part of his private collection of Native American antiquities and cultural heritage. In 2018, the human remains were seized as part of an FBI Investigation. No known individuals were identified. No associated funerary objects are present.
The states from which the human remains in this notice were removed are, collectively, the aboriginal lands of one or more Indian Tribes. The following information was used to identify the aboriginal land: a final judgment of the Indian Claims Commission or the United States Court of Claims, a treaty, an Act of Congress, or an Executive Order.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes, the Federal Bureau of Investigation has determined that:
• The human remains described in this notice represent the physical remains of 138 individuals of Native American ancestry.
• No relationship of shared group identity can be reasonably traced between the human remains and any Indian Tribe.
• The human remains described in this notice were removed from the aboriginal land of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Flandreau Santee Sioux Tribe of South Dakota; Fort Sill Apache Tribe of Oklahoma; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Miami Tribe of Oklahoma; Oglala Sioux Tribe (
Written requests for disposition of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization, or who shows that the requestor is an aboriginal land Indian Tribe.
Disposition of the human remains described in this notice to a requestor may occur on or after October 14, 2022. If competing requests for disposition are received, the Federal Bureau of Investigation must determine the most appropriate requestor prior to
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before September 3, 2022, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by September 29, 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 September 3, 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:
Nomination submitted by Federal Preservation Officer:
The State Historic Preservation Officer reviewed the following nomination and responded to the Federal Preservation Officer within 45 days of receipt of the nomination and supports listing the property in the National Register of Historic Places.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Missouri, Museum of Anthropology has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Tupelo in Lee County, MS.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after October 14, 2022.
Dr. Candace Sall, Director; Museum of Anthropology, University of Missouri, 101 Museum Support Center, Columbia, MO 65211, telephone (573) 882-3764, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of Missouri, Museum of Anthropology. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the University of Missouri, Museum of Anthropology.
In 1960 and 1961, human remains representing, at minimum, one individual were removed from the surface of a washed-out burial labeled Site 2, Chickasaw Old Village, near Highway 78 North in Lee County, MS, by William Philyaw. The individual is of unknown age and sex and is from the “washed out area” of the site at that time. The human remains and associated funerary objects remained in Philyaw's custody until his son, William Philyaw Jr., donated the collection to the Museum of Anthropology in 2018. No known individual was identified. The 207 associated funerary objects are one iron gun part, one iron fragment, two copper gun parts, two copper fragments, two copper tinklers, two miscellaneous metal fragments, three metal musket balls, one copper “S” hook, 26 brass buttons, six gun flints, three glass bottle fragments, seven small blue beads, one large blue bead, 18 small black beads, 16 small white beads, 64 iron fragments, one gun barrel, five copper fragments, one gun flint, eight glass fragments, 13 pottery fragments, three soapstone pipe fragments, six projectile points, nine hafted bifaces, four drills, one hammerstone, and one nutting stone.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological information, biological information, and geographical information.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the University of Missouri, Museum of Anthropology has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The 207 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and The Chickasaw Nation.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after October 14, 2022. If competing requests for repatriation are received, the University of Missouri, Museum of Anthropology must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The University of Missouri, Museum of Anthropology is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
The Federal Bureau of Investigation (FBI) has completed an inventory of human remains and associated funerary objects in consultation with the appropriate Indian Tribes or Native Hawaiian organizations and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the FBI. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary
Federal Bureau of Investigation, FBI Headquarters, Attn: Supervisory Special Agent (SSA) Randolph J. Deaton IV, Art Theft Program, 935 Pennsylvania Avenue NW, Washington, DC 20535, telephone (954) 931-3670, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Federal Bureau of Investigation, Washington, DC. The human remains and associated funerary objects were removed from Mauckport Ferry Mound in Harrison County, IN, and Crib Mound in Spencer County, IN.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by FBI professional staff in consultation with representatives of the Miami Tribe of Oklahoma; Pokagon Band of Potawatomi Indians, Michigan and Indiana; and the Shawnee Tribe (hereafter referred to as “The Consulted Tribes”).
At an unknown date believed to be in the mid-1960s, human remains representing, at minimum, 39 individuals were removed from Mauckport Ferry Mound in Harrison County, IN, and Crib Mound in Spencer County, IN. No known individuals were identified. The 110 associated funerary objects are six projectile points, 23 pieces of worked stone, 26 pottery sherds, five shell fragments, four pieces of clay, and 46 faunal remains.
The Mauckport Ferry Mound site is a Late Archaic site dating from 4,000 to 1,000 B.C., and the Crib Mound site is a Middle-to-Late Archaic site. Both sites were heavily looted during the 1950s and 1960s. Following their removal, the human remains were transported to a private residence where they remained part of a larger collection. In April of 2014, these human remains were seized by the FBI as part of a criminal investigation. Based upon both physical evidence obtained through criminal investigation and osteological analysis, and information obtained through consultation, a relationship of shared group identity can be reasonably traced between the Native American human remains and the Pokagon Band of Potawatomi Indians, Michigan and Indiana.
Officials of the Federal Bureau of Investigation have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 39 individuals of Native American/Southwest ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A) the 110 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Pokagon Band of Potawatomi Indians, Michigan and Indiana.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Federal Bureau of Investigation, FBI Headquarters, Attn: Supervisory Special Agent (SSA) Randolph J. Deaton IV, Art Theft Program, 935 Pennsylvania Avenue NW, Washington, DC 20535, telephone (954) 931-3670, email
The Federal Bureau of Investigation is responsible for notifying The Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Museum of Cultural and Natural History at Central Michigan University has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Museum of Cultural and Natural History. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Museum of Cultural and Natural History at the address in this notice by October 14, 2022.
Dr. Jay C. Martin, Director, Museum of Cultural and Natural History, Central Michigan University, 103 Rowe Hall, Mt. Pleasant, MI 48859, telephone (989) 774-3829, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Museum of Cultural and Natural History staff and consultation occurred with representatives of the Hopi Tribe of Arizona; Ohkay Owingeh, New Mexico (
In 1970, human remains representing, at minimum, one individual were removed from Montezuma County, CO, by Terry Ballard, an amateur archeologist from Overland Park, KS. The site was located on a farm owned by Mr. Ray Stanley in the vicinity of Hovenweep National Monument and approximately 12 miles outside the municipality of Cortez, in Montezuma County, Colorado. Central Michigan University acquired these human remains in 1971, through two separate donations. The human remains belong to a young adult female. No known individual was identified. The five associated funerary objects are one bone awl, three ceramic pieces, and one lot of faunal remains.
A detailed assessment of the human remains was made by Anthropologists Jacqueline T. Eng and Janet Gardner who determined the individual was of Native American descent. Based upon the burial context detailed in the original site report, the site is reasonably believed to be Anasazi and to date from the Basketmaker II (1000 B.C.) to Pueblo III (A.D. 1300) periods. The stylistic attributes of the associated funerary objects from the Stanley Site indicate that they are of Ancestral Puebloan manufacture.
Officials of the Museum of Cultural and Natural History, Central Michigan University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the five objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Jay C. Martin, Museum of Cultural and Natural History, Central Michigan University, 103 Rowe Hall, Mt. Pleasant, MI 48859, telephone (989) 774-3829, email
The Museum of Cultural and Natural History, Central Michigan University is responsible for notifying The Tribes that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined that a violation of the Tariff Act of 1930, as amended, has occurred with respect to U.S. Patent No. 7,371,117 (“the '117 patent”). The Commission has determined that no violation of section 337 has occurred as to U.S. Patent Nos. 9,705,255 (“the '255 patent”) and 10,381,767 (“the '767 patent”). The Commission has issued a limited exclusion order (“LEO”) prohibiting the importation of certain electrical connectors and cages, components thereof, and products containing the same that infringe certain claims of the '117 patent, as well as cease and desist orders (“CDOs”) against the named respondents. This investigation is terminated.
Amanda P. Fisherow, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2737. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On January 26, 2021, the Commission instituted this investigation under
Subsequently, the administrative law judge (“ALJ”) granted Complainant's motion for partial termination of the investigation by withdrawal of the '875 and the '521 patents, and claims 2, 14, 17-19, and 25-27 of the '117 patent; claims 1-3, 5-8, and 18 of the '255 patent; and claims 2-3, 7, 14, 20-22, 30, and 32 of the '767 patent.
On March 11, 2022, the ALJ issued the final initial determination (“ID”). On March 25, 2022, Complainant petitioned for review of the final ID. On April 4, 2022, Respondents filed a response.
On June 21, 2022, the Commission determined to review the ID in part. 87 FR 38180 (June 17, 2022). Specifically, the Commission determined to review the ID's findings regarding: (1) importation, including any findings impacted by the determination on importation; (2) the Redesigned Products; (3) infringement for claim 9 of the '117 patent; (4) the claim construction of the term “contact tail adapted for attachment to the printed circuit board that is perpendicular to the . . . printed circuit board” of the '767 patent; (5) infringement for claims 1, 4-6, 9-13, 15-17, 19, and 23 of the '767 patent; (6) the technical prong of the domestic industry requirement for the '767 patent; (7) obviousness for the '767 patent; and (8) the economic prong of the domestic industry requirement. The Commission determined not to review any other findings, including the ID's findings that Luxshare does not infringe the asserted claims of the '255 patent. The Commission asked for briefing on remedy, bonding, and the public interest, as well as one question related to importation. The parties filed their opening submissions on July 6, 2022, and their reply submissions on July 13, 2022.
Having reviewed the record of the investigation, including the ID and the parties' submissions, the Commission has found a violation of section 337 with respect to asserted claims 1, 9, 24, and 29 of the '117 patent. The Commission (1) finds that at least one product from each of the accused product groups, with the exception of the QSFP 2x1 Press-fit products, has been imported; (2) affirms the ID's finding of infringement of claim 9 of the '117 patent with modified reasoning; (3) for the '767 patent, affirms the ID's construction of “contact tail adapted for attachment to the [PCB] that is perpendicular to the . . . [PCB]” with modified reasoning; (4) affirms the ID's determination on infringement for claim 1 of the '767 patent with modified reasoning; (5) affirms the ID's determination on infringement/non-infringement for claims 4-6, 9-13, 15-17, 19, and 23 of the '767 patent; (6) affirms the ID's findings with respect to the technical prong of the domestic industry requirement for the '767 patent; (7) affirms the ID's obviousness findings for the '767 patent; (8) takes no position on the economic prong of the domestic industry requirement under subsection 337(a)(3)(A) (plant and equipment) for all patents; (9) takes no position on the economic prong of the domestic industry requirement for the '767 patent; and (10) affirms the ID's findings on the economic prong of the domestic industry requirement under subsection 337(a)(3)(B) (employment of labor or capital) for the '255 and '117 patents.
In addition, the Commission finds that the public interest factors do not preclude issuance of the requested relief.
The Commission's reasoning in support of its determinations is set forth more fully in its opinion that is issued concurrently herewith. The Commission's opinion and orders were delivered to the President and to the United States Trade Representative on the day of their issuance. The investigation is hereby terminated.
The Commission vote for this determination took place on September 8, 2022.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the countervailing and antidumping duty orders on stainless steel sheet and strip from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
June 6, 2022.
Stamen Borisson (202-205-3125), 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 these reviews 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, D, E, and F (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (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.
On September 7, 2022, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of New Hampshire, in a lawsuit entitled
The United States filed this lawsuit under sections 301(a), 309(b), and 504 of the Clean Water Act (“CWA”), 33 U.S.C. 1311(a), 1319(b), 1364, against the State of New Hampshire and the New Hampshire Fish and Game Department (“NHF&G”), in connection with discharges of pollutants from the Powder Mill State Fish Hatchery, in New Durham, New Hampshire (the “Hatchery”). The Hatchery is owned by the State and operated by NHF&G. The Complaint asserts two claims for injunctive relief. The first claim alleges that the State and NHF&G violated a National Pollutant Discharge Elimination System permit (Permit No. NH0000710; the “Permit”), issued by EPA under section 402 of the CWA, 33 U.S.C. 1342, by exceeding its narrative and numeric discharge limits for total phosphorus and pH, in violation of CWA section 309(b), 33 U.S.C. 1319(b). The second claim alleges that such discharges have caused or contributed to contamination, eutrophication, and the growth of toxic cyanobacteria in the Merrymeeting River and its impoundments, known as Marsh, Jones, and Downing Ponds, which poses an imminent and substantial endangerment to human health and welfare, in violation of CWA section 504, 33 U.S.C. 1364.
Under the proposed consent decree, NHF&G must implement measures designed to bring the Hatchery into compliance with the CWA and the Permit by the end of 2025. These measures include constructing and operating new wastewater treatment systems and upgrading other aspects of the Hatchery's facilities and operations, and implementing best management practices related to flow, pH, and phosphorus, such as adding a neutralizing agent, reconfiguring facility
The United States filed its complaint as plaintiff-intervenor in a civil action initiated in 2018 by the Conservation Law Foundation (“CLF”), under the CWA's citizen-suit provision, 33 U.S.C. 1365, entitled
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department website:
With each such request, please enclose a check or money order for $12.75 (25 cents per page reproduction cost) per paper copy, payable to the United States Treasury.
National Archives and Records Administration (NARA).
Notice of administrative correction to a records schedule.
We are making the following administrative corrections to schedule DAA-0566-2018-0006, which provides disposition authority for United States Citizenship and Immigration Services Form 1-824, Application for Action on an Approved Application or Petition. The schedule covers forms and supporting documentation used to request duplicates of immigration forms and notices, and to request notifications of immigration status be sent to various U.S. government entities, such as U.S. consulates. An administrative correction addresses errors or oversights to temporary items in an approved records schedule. We are adding a superseded item citation.
Submit any comments by October 31, 2022.
You can find the records schedule subject to this proposed administrative correction on our website's Records Control Schedule page at
You may submit comments by the following method:
If you are unable to comment via
Kimberly Richardson, Regulatory and External Policy Program Manager, by email at
Administrative corrections are changes to temporary items on approved records schedules to address errors or oversights when the records were originally scheduled. The notice applies only to the changes described; not to other portions of a schedule. Submitting agencies cannot implement administrative corrections until the comment period ends and NARA approves the changes.
This administrative correction should be read in conjunction with the previously approved records schedule, N1-85-96-01, Department of Justice, Immigration and Naturalization Service, Immigration and Naturalization Service (INS) Service Center Receipt Files. You can find this schedule on the Records Control Schedule at
Administrative correction to include a superseded authority citation that was not correctly identified on schedule DAA-0566-2018-0006, Department of Homeland Security, U.S. Citizenship and Immigration Services, 1-824, Application for Action on an Approved Application or Petition, available on the Records Control Schedule page at
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice of certain Federal agency requests for records disposition authority (records schedules). We publish notice in the
We must receive responses on the schedules listed in this notice by October 31, 2022.
To view a records schedule in this notice, or submit a comment on one, use the following address:
•
If you are unable to comment via
Kimberly Richardson, Regulatory and External Policy Program Manager, by email at
We are publishing notice of records schedules in which agencies propose to dispose of records they no longer need to conduct agency business. We invite public comments on these records schedules, as required by 44 U.S.C. 3303a(a), and list the schedules at the end of this notice by agency and subdivision requesting disposition authority.
In addition, this notice lists the organizational unit(s) accumulating the records or states that the schedule has agency-wide applicability. It also provides the control number assigned to each schedule, which you will need if you submit comments on that schedule. We have uploaded the records schedules and accompanying appraisal memoranda to the
We will post comments, including any personal information and attachments, to the public docket unchanged. Because comments are public, you are responsible for ensuring that you do not include any confidential or other information that you or a third party may not wish to be publicly posted. If you want to submit a comment with confidential information or cannot otherwise use the
We will consider all comments submitted by the posted deadline and consult as needed with the Federal agency seeking the disposition authority. After considering comments, we may or may not make changes to the proposed records schedule. The schedule is then sent for final approval by the Archivist of the United States. After the schedule is approved, we will post on
We will post schedules on our website in the Records Control Schedule (RCS) Repository, at
Each year, Federal agencies create billions of records. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. The records schedules authorize agencies to preserve records of continuing value in the National Archives or to destroy, after a specified period, records lacking continuing administrative, legal, research, or other value. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
Agencies may not destroy Federal records without the approval of the Archivist of the United States. The Archivist grants this approval only after thorough consideration of the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value. Public review and comment on these records schedules is part of the Archivist's consideration process.
1. Department of the Army, Agency-wide, Integrated Logistics Support Center Packaging System Records (DAA-AU-2021-0003).
2. Department of Defense, Defense Counterintelligence and Security Agency, Office of the Inspector General Records (DAA-0446-2022-0002).
3. Department of Defense, Defense Logistics Agency, Acquisition-Contracting Records (DAA-0361-2020-0003).
4. Department of Defense, Defense Logistics Agency, Logistics Supply Chain Management Records (DAA-0361-2020-0004).
5. Department of Defense, Defense Logistics Agency, Logistics Management and Strategic Materials Storage Records (DAA-0361-2021-0001).
6. Department of Defense, Office of the Secretary of Defense, National Guard Youth Challenge Program Records (DAA-0330-2022-0005).
7. Department of Defense, Office of the Secretary of Defense, Personnel Recovery Records (DAA-0330-2022-0008).
8. Department of Health and Human Services, Office of the Secretary, Correspondence Management Schedule of the Assistant Secretary for Health (DAA-0514-2020-0002).
9. Department of Homeland Security, Bureau of Customs and Border Protection, Trusted Worker Records (DAA-0568-2020-0003).
10. Department of Labor, Wage and Hour Division, Policy, Planning and Reporting Records (DAA-0155-2022-0002).
11. Department of the Navy, Agency-wide, Military Personnel Records (DAA-NU-2021-0001).
12. Department of Transportation, Federal Aviation Administration, Aviation Insurance Program Records (DAA-0237-2021-0017).
13. Department of Transportation, Federal Aviation Administration, National Vital Information System Records (DAA-0237-2022-0005).
14. Department of the Treasury, Internal Revenue Service, Fingerprint Records and Professional Credentials of eFile Providers (DAA-0058-2022-0001).
15. Administrative Office of the United States Courts, United States Court of International Trade, Case Files (DAA-0321-2020-0001).
16. Naming Commission, Agency-wide, Records of the Naming Commission (DAA-0148-2022-0003).
17. National Archives and Records Administration, Government-wide, GRS 6.1—Email and Other Electronic Records Managed Under a Capstone Approach (DAA-GRS-2022-0006).
18. Securities and Exchange Commission, Office of Credit Ratings, Exemptive Relief and No Action Letters (DAA-0266-2022-0002).
National Archives and Records Administration (NARA).
Notice of administrative correction to a records schedule.
We are making the following administrative correction to DAA-0266-2015-0004, Securities and Exchange Commission, to remove the item for records of reorganization proceedings because such records are already covered by other items on the schedule. An administrative correction addresses errors or oversights to temporary items in an approved records schedule.
Submit any comments by October 31, 2022.
You can find the records schedule subject to this proposed administrative correction on our website's Records Control Schedule page at
You may submit comments by the following method:
If you are unable to comment via
Kimberly Richardson, Regulatory and External Policy Program Manager, by email at
Administrative corrections are changes to temporary items on approved records schedules to address errors or oversights when the records were originally scheduled. The notice applies only to the changes described, not to other portions of a schedule. Submitting agencies cannot implement administrative corrections until the comment period ends and NARA approves the changes.
Read the proposed administrative correction in conjunction with the previously approved DAA-0266-2015-0004-0005, Office of General Counsel, Securities and Exchange Commission, Office of the General Counsel Records and NC1-266-77-002-85, Securities and Exchange Commission, Comprehensive Schedule.
We are making an administrative correction to remove schedule item DAA-0266-2015-0004-0005 (Reorganization Proceedings). We reviewed the administrative record and determined that, when the schedule was created, neither NARA nor the SEC took into consideration changes to the Bankruptcy Code that impacted SEC's role and the records that would be created. As a result, a separate series for Reorganization Proceedings was erroneously added to the schedule, even though such records are already covered by permanent and temporary schedule items 0001-0004. Records of Reorganization Proceedings were previously scheduled under item NC1-266-77-002 item 85 (SEC File Nos. 206-, 207- to 215-, 217-). At that time, the records documented the SEC's substantial role in reorganization proceedings. Since NC1-266-77-0002 was approved, changes to bankruptcy laws substantially reduced the agency's role in reorganization proceedings. Under the current Bankruptcy Code, records subject to SEC review are covered by schedule items DAA-0266-2015-0004-0001, 0002, 0003 or 0004. Item 0005, proposed for removal, creates ambiguous disposition instructions as it overlaps with the other items. Removing the item allows the agency to implement appropriate disposition for records produced under the current law using the remaining schedule items.
National Endowment for the Humanities, National Foundation on the Arts and the Humanities.
Notice of meeting.
The National Endowment for the Humanities (NEH) will hold fourteen meetings, by videoconference, of the Humanities Panel, a federal advisory committee, during October 2022. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965.
See
Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW, Room 4060, Washington, DC 20506; (202) 606-8322;
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given of the following meetings:
This video meeting will discuss applications on the topics of Literary and Cultural Studies, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topic of World Studies (Pre-Modern), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topic of U.S. History (Pre-1900), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topic of U.S. History, for the Media Projects: Production Grants program, submitted to the Division of Public Programs.
This video meeting will discuss applications on the topic of U.S. History (African American Studies), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topics of Film and Media Studies, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topic of American Studies, for the Public Humanities Projects: Exhibitions (Implementation) grant program, submitted to the Division of Public Programs.
This video meeting will discuss applications on the topic of Historic Sites, for the Public Humanities Projects: Historic Places (Implementation) grant program, submitted to the Division of Public Programs.
This video meeting will discuss applications on the topic of Place-based History, for the Public Humanities Projects: Exhibitions (Implementation) grant program, submitted to the Division of Public Programs.
This video meeting will discuss applications on the topic of U.S. History (Regional, State, and Local), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topic of History, for the Media Projects: Production Grants program, submitted to the Division of Public Programs.
This video meeting will discuss applications on the topic of Podcasts, for the Media Projects: Production Grants program, submitted to the Division of Public Programs.
This video meeting will discuss applications on the topics of Art and Architectural History, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This video meeting will discuss applications on the topics of Arts and Culture, for the Media Projects: Production Grants program, submitted to the Division of Public Programs.
Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. I have made this determination pursuant to the authority granted me by the Chair's Delegation of Authority to Close Advisory Committee Meetings dated April 15, 2016.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend MRX's Pricing Schedule at Options 7, Section 5.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
MRX proposes to amend its Pricing Schedule at Options 7, Section 5, Other Options Fees and Rebates, to assess membership fees, which are not assessed today, and which have not been assessed since MRX's inception in 2016.
This proposal reflects MRX's assessment that it has gained sufficient market share to compete effectively against the other 15 options exchanges without waiving fees for membership. These types of fees are assessed by options exchanges that compete with MRX in the sale of exchange services—indeed, MRX is the only options exchange (out of the 16 current options exchanges) not assessing membership fees today. New exchanges commonly waive membership fees to attract market participants, facilitating their entry into the market and, once there is sufficient depth and breadth of liquidity, “graduate” to compete against established exchanges and charge fees that reflect the value of their services.
As noted above, MRX Members are not assessed fees for membership today. Under the proposed fee change, MRX Members will be required to pay a monthly Access Fee, which entitles MRX Members to trade on the Exchange based on their membership type. Specifically, MRX proposes to assess Electronic Access Members
In order to receive market making appointments to quote in any options class, CMMs will also be assessed a CMM Trading Right Fee identical to GEMX.
The Exchange is now proposing to adopt a monthly CMM Trading Rights Fee. Under the proposed fee structure, CMMs will be assessed a Trading Rights Fee of $850 per month for the first trading right, which will entitle the CMM to quote in 20 percent of industry volume.
PMMs have additional obligations on MRX as compared to CMMs. PMMs are required to open options series in which they are assigned each day on MRX. Specifically, PMMs must submit a Valid Width Quote each day to open their assigned options series.
Finally, the Exchange is proposing only to charge the $200 access fee to EAMs, and no trading rights fee, as the technical, regulatory, and administrative services associated with an EAM's use of the Exchange are not as comprehensive as those associated with Market Makers' use.
MRX believes that its membership fees, which have been in effect since May 2, 2022, are in line with or less than those of other options exchanges. The Exchange believes it is notable that during this time, there have been no comment letters submitted to the Commission arguing that the Exchange's new fees are unreasonable. The membership fees are constrained by competition. For example, since the inception of the membership fees on May 2, 2022, one firm cancelled nine CMM trading rights as well as their membership on MRX.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to the Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for order flow, which constrains its pricing determinations. The fact that the market for order flow is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Congress directed the Commission to “rely on `competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.' ”
Over the years, MRX has amended its transactional pricing to remain competitive and attract order flow to the Exchange.
In June 2019, MRX commenced offering complex orders.
An exchange can show that a product is “subject to significant substitution-based competitive forces” by introducing evidence that customers can substitute the product for products offered by other exchanges.
Chart 1 below shows the January 2022 market share for multiply-listed options by exchange. Of the 16 operating options exchanges, none currently has more than a 13.1% market share, and MRX has the smallest market share at 1.8%. Customers widely distribute their transactions across exchanges according to their business needs and the ability of each exchange to meet those needs through technology, liquidity and functionality. Average market share for the 16 options exchanges is 6.26 percent, with the median at 5.8, and a range between 1.8 and 13.1 percent.
Market share is the percentage of volume on a particular exchange relative to the total volume across all exchanges, and indicates the amount of order flow directed to that exchange. High levels of market share enhance the value of trading and membership. MRX has the smallest number of Members relative to its GEMX, ISE, NOM and Phlx affiliates, with approximately 40 members. This demonstrates that customers can and will choose where to become members, need not become members of all exchanges, and do not need to become Members of MRX and instead may utilize a third party.
The Exchange established these lower (when compared to other options exchanges in the industry) membership fees in order to encourage market participants to become MRX Members and register as MRX Market Makers. As noted above, MRX has grown its market share since inception and seeks to continue to grow its membership base. The Exchange believes that there are many factors that may cause a market participant to decide to become a member of a particular exchange in addition to its pricing.
As noted herein, MRX filed its membership fees on May 2, 2022 and has not received a comment with respect to the proposed membership fee changes. MRX Members may elect to cancel their membership on MRX. Since the inception of the membership fees on May 2, 2022, one firm cancelled nine CMM trading rights as well as their membership on MRX. Also, another firm decreased their CMM trading rights from nine to four CMM trading rights. Also, no MRX Member is required by rule, regulation, or competitive forces to be a Member on the Exchange.
The proposed membership fees described below are in line with or less than those of other markets. Setting a fee above competitors is likely to drive away customers, so the most efficient price-setting strategy is to set prices at the same level as other firms.
The Exchange's proposal to adopt membership fees is reasonable, equitable and not unfairly discriminatory. As a self-regulatory organization, MRX's membership department reviews applicants to ensure that each application complies with the rules specified within MRX General 3
MRX's flat rate Access Fee to Electronic Access Members of $200 per month, per membership is reasonable because the Exchange notes that the technical, regulatory, and administrative services associated with an EAM's use of the Exchange are not as comprehensive as those associated with Market Makers.
The Exchange's proposal to assess Primary Market Makers a slightly higher flat rate Access Fee of $200 per month, per membership as compared to Competitive Market Makers who would be assessed a flat rate Access Fee of $100 per month, per membership is reasonable because Primary Market Makers have higher regulatory obligations and require more technical, regulatory, and administrative services as compared to Competitive Market Makers. For PMMs on MRX, the fees required to access the Exchange are substantially lower than those of competing exchanges. For example, a PMM could quote on the Exchange for only $200 (
Unlike PMMs, similar to GEMX's trading rights fee,
The Exchange does not believe that it is unfairly discriminatory to assess
Further, with respect to the higher fees for Market Makers generally, MRX notes that Market Makers: (1) consume the most bandwidth and resources of the network; (2) transact a majority of the volume on the Exchange; and (3) require the high touch network support services provided by the Exchange and its staff. Other non-Market Maker market participants take up significantly less Exchange resources as discussed further below. Further, the Exchange notes that Market Makers account for greater than 99% of message traffic over the network, while other non-Market Maker market participants account for less than 1% of message traffic over the network. Most Members do not have a business need for the high performance network solutions generally required by Market Makers. The Exchange's high performance network solutions and supporting infrastructure (including employee support), provides unparalleled system throughput and the capacity to handle approximately 3 million quote messages per second. On an average day, MRX handles over 6.10 billion total messages. Of those 6.10 billion daily messages, Market Makers generate 6.08 billion of those messages, while other non-Market Maker market participants generate approximately 20 million messages. Additionally, in order to achieve consistent, premium network performance, MRX must build out and maintain a network that has the capacity to handle the message rate requirements beyond those 6.08 billion daily messages. These billions of messages per day consume the Exchange's resources and significantly contribute to the overall expense for storage and network transport capabilities. Given this difference in network utilization rate, the Exchange believes that it is reasonable, equitable, and not unfairly discriminatory that Market Makers are assessed different Access Fees as compared to EAMs.
MRX notes that while Market Makers continue to account for a vast majority of resources placed on MRX and its System (as discussed herein), Market Makers continue to be valuable market participants on the exchanges as the options market is a quote driven industry. MRX recognizes the value that Market Makers bring to the Exchange. For certain transactions, MRX also assesses a lower fee for Market Makers compared to other non-Priority Customer market participants to attract liquidity to the Exchange.
Additionally, the Exchange believes that the proposed change will better align MRX's membership fees with rates charged by competing options exchanges. Further, the Exchange believes that the proposal is reasonably designed to continue to compete with other options exchanges by incentivizing market participants to register as Market Makers on MRX in a manner than enables MRX to improve its overall competitiveness and strengthen market quality for all market participants.
Similar to recent proposal by BOX Exchange LLC (“BOX”),
As noted above, one firm cancelled nine CMM trading rights as well as their membership on MRX.
Membership fees are charged by all options exchanges except MRX. In 2022,
MRX makes the same arguments herein as were proposed by MEMX in similarly adopting membership fees. The Exchange notes that MRX's ability to assess membership fees similar to MEMX and all other options markets permits it to compete with other options markets on an equal playing field. MRX is the only options market that does not have membership fees. Most firms that actively trade on options markets are not currently Members of MRX. Using options markets that Nasdaq operates as points of comparison, less than a third of the firms that are members of at least one of the options markets that Nasdaq operates are also Members of MRX (approximately 29%). The Exchange notes that no firm is a Member of MRX only. Few, if any, firms have become Members at MRX, notwithstanding the fact that MRX membership is currently free, because MRX currently has less liquidity than other options markets. As explained above, MRX has the smallest market share of the 16 options exchanges, representing only approximately 1.8% of the market, and, for certain market participants, the current levels of liquidity may be insufficient to justify the costs associated with becoming a Member and connecting to the Exchange, notwithstanding the fact that membership is free.
The decision to become a member of an exchange, particularly for registered market makers, is complex, and not solely based on the non-transactional costs assessed by an exchange. Becoming a member of an exchange does not “lock” a potential member into a market or diminish the overall competition for exchange services. The decision to become a member of an exchange is made at the beginning of the relationship, and is no less subject to competition than trading fees.
In lieu of becoming a member at each options exchange, a market participant may join one exchange and elect to have their orders routed in the event that a better price is available on an away market. Nothing in the Order Protection Rule requires a firm to become a Member at MRX.
In lieu of joining an exchange, a third-party may be utilized to execute an order on an exchange. For example, a third-party broker-dealer Member of MRX may be utilized by a retail investor to submit orders into an Exchange. An institutional investor may utilize a broker-dealer, a service bureau,
After 6 years, MRX proposes to commence assessing membership fees, just as all other options exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes its proposal remains competitive with other options markets, and will offer market participants with another choice of venue to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The Exchange notes that other options markets have adopted membership fees. MEMX recently reasoned that it should be permitted to adopt membership fees because MEMX's proposed membership fees would be lower than the cost of
Likewise, MRX's ability to assess membership fees, similar to MEMX and all other options markets, would permit it to compete with other options markets on an equal playing field. MRX is the only options market that does not have membership fees.
The proposed membership fees are identical to membership fees assessed by GEMX.
With respect to the CMM Trading Rights Fee, the proposed fees compare favorably with those of other options exchanges.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 18, 2022, Nasdaq MRX, LLC (“MRX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend MRX's Pricing Schedule at Options 7, Section 7.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
MRX proposes to amend its Pricing Schedule at Options 7, Section 7, to assess market data fees, which are not assessed today, and which have not been assessed since MRX's inception in 2016.
This Proposal reflects MRX's assessment that it has gained sufficient market share to compete effectively against other 15 options exchanges without waiving market data fees. Such fees are assessed by options exchanges that compete with MRX—indeed, MRX is the only options exchange (out of the 16 current options exchanges) not to assess them today.
As explained in further detail below, MRX today is in the same position as NYSE National in 2020, when it sought approval for the “NYSE National Integrated Feed.”
The three factors cited in the Commission's approval order for NYSE National are present in MRX today. First, MRX has a consistently low percentage of market share, starting at approximately 0.2 percent when it opened as an Exchange and ending in approximately 1.8 percent today. Second, only a small number of firms purchase market data from MRX relative to its affiliated options exchanges. Third, a sizeable portion of subscribers—approximately 15 percent—have terminated their subscriptions following the implementation of the proposed fees, demonstrating that customers can and do exercise choice in deciding whether to purchase the Exchange's market data feeds.
Disapproval of the Proposal—given that the three factors cited in the Commission's approval order for NYSE National two years ago are present in MRX today—would result in differential treatment of similarly-situated exchanges. Under such circumstances, disapproval of the Proposal should be rejected as arbitrary and capricious.
Disapproval would also place a substantial burden on competition. MRX would be uniquely disadvantaged as the only options exchange unable to charge for its market data. If the Commission were to disapprove this Proposal, that action, and not market forces, would determine whether MRX is successful in its competition with other options exchanges.
New exchanges commonly waive data fees to attract market participants, facilitating their entry into the market and, once there is sufficient depth and breadth of liquidity, “graduate” to compete against established exchanges and charge fees that reflect the value of their services. If MRX is incorrect in its assessment, that error will be reflected in MRX's ability to compete with other options exchanges.
The Exchange proposes to amend fees for the following market data feeds within Options 7, Section 7: (1) Nasdaq MRX Depth of Market Data;
In addition to the proposed fees for each data feed, the Exchange is introducing an Internal Distributor Fee
The Exchange also proposes to assess an External Distributor Fee of $2,000 per month for the Nasdaq MRX Depth of Market Feed, Order Feed, and Top Quote Feed, an External Distributor Fee of $1,000 per month for the Trades Feed, and an External Distributor Fee of $1,500 per month for the Spread Feed.
MRX will also assess Professional
MRX also proposes a Non-Display Enterprise License for $7,500 per month. This license would lower costs for internal professional subscribers and lower administrative costs overall by permitting the distribution of all MRX proprietary direct data feed products to an unlimited number of internal non-display Subscribers without incurring additional fees for each internal Subscriber, or requiring the customer to count internal subscribers.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to the pricing schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for order flow, which constrains its pricing determinations. The fact that the market for order flow is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Congress directed the Commission to “rely on `competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.”
Over the years, MRX has amended its transactional pricing to attract order flow to the Exchange.
An Exchange can show that a product is “subject to significant substitution-based competitive forces” by introducing evidence that customers can substitute that product with products offered by other exchanges.
NYSE National was able to prove exactly this when it sought approval for the “NYSE National Integrated Feed”
MRX today is in essentially the same position as NYSE National in 2020, and all three of the factors cited in the Commission's approval order for NYSE National are present in MRX today. First, MRX has a consistently low percentage of market share, starting at approximately 0.2 percent when it opened as an Exchange and ending in approximately 1.8 percent today. Second, only a small number of firms purchase market data from MRX relative to its affiliated options exchanges. Third, a sizeable portion of subscribers—approximately 15 percent—have terminated their subscriptions following the implementation of the proposed fees, demonstrating that customers can and do exercise choice in deciding whether to purchase the Exchange's market data feeds.
As of May 2, 2022, the date that MRX initially proposed these market data fees, MRX reported that two customers had terminated their market data subscriptions.
Commission Staff have requested additional information pertaining to: (i) the types of feeds available to these customers prior to termination, (ii) the characteristics of the customers that terminated their feeds, and (iii) whether such customers traded on the Exchange.
With respect to the types of data feeds accessed, two of the five customers had access to all five feeds: Nasdaq MRX Depth of Market Data, Nasdaq MRX Order Feed, Nasdaq MRX Top Quote Feed, Nasdaq MRX Trades Feed, and Nasdaq MRX Spread Feed. The three remaining customers had access to only two feeds: the Order Feed and the Top Quote Feed. All five customers cancelled all feeds available to them.
With respect to the types of customers cancelling feeds, three of the five were either data vendors or technology suppliers. Data vendors purchase exchange data and redistribute it to downstream customers, while technology suppliers incorporate exchange data into software solutions, which are sold to downstream customers. The remaining two firms engage in options trading, either on their own behalf or that of a customer.
With respect to trading, the three data vendors/technology suppliers do not trade on their own behalf or on the behalf of any downstream customs, although their customers may do so. The Exchange understands that these three firms cancelled due to insufficient demand from their downstream customers for MRX data. The two remaining firms, which do engage in options trading, have not traded on MRX, but are active traders on other Nasdaq options exchanges.
Detailed information supporting the first step in the analysis of substitution-based competitive forces—low market share—is set forth in Chart 1, which shows the January 2022 market share for multiply-listed options by exchange. Of the 16 operating options exchanges, none currently has more than a 13.1% market share, and MRX has the smallest market share at 1.8%. Customers widely distribute their transactions across exchanges according to their business needs and the ability of each exchange to meet those needs through technology, liquidity and functionality. Average market share for the 16 options exchanges is 6.26 percent, with the median at 5.8, and a range between 1.8 and 13.1 percent.
Market share is the percentage of volume on a particular exchange relative to the total volume across all exchanges, and indicates the amount of order flow directed to that exchange. High levels of market share enhance the value of market data.
The second step in this analysis—demonstrating that only a small number of firms purchase market data relative to affiliated options exchanges—is shown in Chart 2, which compares the number of firms with access to market data from MRX to the number of firms purchasing market data from the four MRX-affiliated options exchanges, GEMX, ISE, The Nasdaq Stock Market LLC (“NOM”) and Nasdaq PHLX, LLC (“Phlx”).
Chart 2 shows that 34 firms subscribed to at least one market data product from MRX in the first quarter of 2022. This is the second lowest number of firms purchasing market data from the Nasdaq-affiliated options exchanges.
The third step in this analysis—showing that a sizable number of customers terminated subscriptions following the proposal of the fees—is confirmed by the five customer cancellations. As explained above, all five customers terminated all feeds available to them. Although not all
MRX lists no proprietary options products that are entirely unique to MRX. Firms can substitute MRX market data with feeds from exchanges that provide a high degree of functionality, including complex orders. Full market data options are available, for example, from Cboe,
This analysis must be viewed in the context of a field with relatively low barriers to entry. MRX, like many new entrants to the field, offered market data for free to establish itself and gain market share. As new entrants enter the field, MRX can also expect competition from these new entrants. Those new entrants, like MRX, are likely to set market data fees to zero, increasing marketplace competition.
The Proposal is not unfairly discriminatory. The five market data feeds at issue here—the Depth of Market Feed, Order Feed, Top Quote Feed, Trades Feed, and Spreads Feed—are used by a variety of market participants for a variety of purposes. Users include regulators, market makers, competing exchanges, media, retail, academics, portfolio managers. Market data feeds will be available to members of all of these groups on a non-discriminatory basis.
With respect to the proposed Non-Display Enterprise License, enterprise licenses in general have been widely recognized as an effective and not unfairly discriminatory method of distributing market data. Enterprise licenses are widely employed by options exchanges, and the proposal here is typical of such licenses.
After 6 years, MRX proposes to commence assessing market data fees, just as all other options exchanges do now.
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. For all of the reasons set forth above, the Exchange is subject to “significant substitution-based competitive forces”: (i) it has a consistently low percentage of market share, starting at approximately 0.2 percent when it opened as an Exchange and ending in approximately 1.8 percent today; (ii) only a small number of firms purchase market data from MRX relative to its affiliated options exchanges; and (iii) a sizeable portion of subscribers—approximately 15 percent—have terminated their subscriptions following the implementation of the proposed fees, demonstrating that customers can and do exercise choice in deciding whether to purchase market data.
Nothing in the Proposal burdens inter-market competition (the competition among self-regulatory organizations) because approval of the Proposal does not impose any burden on the ability of other options exchanges to compete. Each of the remaining 15 options exchanges currently sells its market data, and is capable of modifying its fees in response to the proposed changes by MRX. Moreover, allowing MRX, or any new market entrant, to waive fees for a period of time to allow it to become established encourages market entry and thereby ultimately promotes competition.
Nothing in the Proposal burdens intra-market competition (the competition among consumers of exchange data) because each customer will be able to decide whether or not to purchase the Exchange's market data, as demonstrated by the fact that a significant number of the Exchange's customers have already elected to terminate their access to such feeds.
The Exchange 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. 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. If the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 17(a) of the Investment Company Act of 1940 (the “Act”) generally prohibits affiliated persons of a registered investment company (“fund”) from borrowing money or other property from, or selling or buying securities or other property to or from, the fund or any company that the fund controls. Rule 17a-6 (17 CFR 270.17a-6) permits a fund, or a company controlled by the fund, and a “portfolio affiliate” of the fund (a company that is an affiliated person of the fund because the fund controls the company, or holds five percent or more of the company's outstanding voting securities) to engage in principal transactions that would otherwise be prohibited under section 17(a) of the Act under certain conditions. A fund may not rely on the exemption in the rule to enter into a principal transaction with a portfolio affiliate if certain prohibited participants (
The rule is designed to permit transactions between funds and their portfolio affiliates in circumstances in which it is unlikely that the affiliate would be in a position to take advantage of the fund. In determining whether a financial interest is “material,” the board of the fund should consider whether the nature and extent of the interest in the transaction is sufficiently small that a reasonable person would not believe that the interest affected the determination of whether to enter into the transaction or arrangement or the terms of the transaction or arrangement. The information collection requirements in rule 17a-6 are intended to ensure that Commission staff can review, in the course of its compliance and examination functions, the basis for a board of director's finding that the financial interest of an otherwise prohibited participant in a party to a transaction with a portfolio affiliate is not material.
Based on public filings made with the Commission, we estimate that annually 335 funds and their series (collectively, “funds”) may rely on rule 17a-6 to engage in otherwise prohibited transactions under section 17(a) of the 1940 Act. This estimate is based on publicly available Form N-CEN filings. Solely for the purposes of this PRA extension, we assume that each of these funds has engaged in one transaction per reporting period that resulted in a paperwork burden pursuant to rule 17a-6. We estimate that compliance with the recordkeeping requirement for rule 17a-6 will impose a burden of .2 hours (12 minutes) for each transaction for which there is a paperwork burden. Therefore, we estimate 67 burden hours to be associated with rule 17a-6 recordkeeping requirements annually, with an associated internal cost of $5,762.
The estimate of burden hours and burden costs is made solely for the purposes of the PRA. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with this collection of information requirement is necessary to obtain the benefit of relying on rule 17a-6. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of
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.
Please direct your written comments to: David Bottom, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend MRX's Pricing Schedule at Options 7, Section 6.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
MRX proposes to amend its Pricing Schedule at Options 7, Section 6, Ports and Other Services, to assess port fees, which are not assessed today, and which have not been assessed since MRX's inception in 2016.
This proposal reflects MRX's assessment that it has gained sufficient market share to compete effectively against the other 15 options exchanges without waiving fees for ports. These types of fees are assessed by options exchanges that compete with MRX in the sale of exchange services. New exchanges commonly waive connectivity fees to attract market participants, facilitating their entry into the market and, once there is sufficient depth and breadth of liquidity, “graduate” to compete against established exchanges and charge fees that reflect the value of their services.
The Exchange proposes to amend fees for the following ports within Options 7, Section 6: (1) FIX,
The Exchange proposes to assess no fee for the first FIX Port obtained by an Electronic Access Member
The Exchange proposes to assess no fee for the first FIX Disaster Recovery Port obtained by an Electronic Access Member
The OTTO Port, CTI Port, FIX Port, FIX Drop Port and all Disaster Recovery Ports
The SQF Port and the SQF Purge Port are available to all Market Makers, and will be subject to a monthly cap of $17,500.
The Exchange is not amending the TradeInfo MRX Interface
Only one order protocol is required for an MRX Member to submit orders into MRX. The Exchange will provide each Electronic Access Member the first FIX Port at no cost to submit orders into MRX. Only one account number is necessary to transact an options business on MRX and account numbers are available to Members at no cost. Only one quote protocol is required for an MRX Market Maker to submit quotes into MRX. The Exchange will provide each Market Maker the first SQF Port at no cost to submit quotes into MRX. A quoting protocol, such as SQF, is only required to the extent an MRX Member has been appointed as a Market Maker in an options series pursuant to Options 2, Section 1.
Only MRX Members may utilize ports on MRX. Any market participant that sends orders to a Member would not need to utilize a port. The Member can send all orders, proprietary and agency,
MRX also offers an OTTO protocol. Unlike FIX, which offers routing capability, OTTO does not permit routing. Depending on a Member's business model, Members may elect to purchase an OTTO Port in addition to the first FIX Port offered at no cost. Members may prefer one protocol as compared to another protocol, for example, the ability to route may cause a Member to utilize FIX and a Member that desires to execute an order locally may utilize OTTO. Also, the OTTO Port offers lower latency as compared to the FIX Port, which may be attractive to Members depending on their trading behavior. MRX Members utilizing the first FIX Port offered at no cost do not need to purchase an OTTO Port. However, Members may elect to utilize both order entry protocols, depending on how they organize their business. Because the Exchange is providing the first FIX Port at no cost, the use of an OTTO Port is optional. OTTO provides MRX Members with an additional choice as to the type of protocol that they may use to submit orders to the Exchange. Today, Nasdaq Phlx LLC (“Phlx”) and Nasdaq BX, Inc. (“BX”) offer only a FIX Port to submit orders on those options markets.
Further, while only one protocol is necessary to submit orders into MRX, Members may choose to purchase a greater number of order entry ports, depending on that Member's business model.
The Exchange's proposal to offer an SQF Purge Port for $1,250 per port, per month is optional. The SQF Purge Port is designed to assist Market Makers in the management of, and risk control over, their quotes. Market Makers may utilize a purge port to reduce uncertainty and to manage risk by purging all quotes in their assigned options series. Of note, Market Makers may only enter interest into SQF in their assigned options series. Additionally, the SQF Purge Port may be utilized by a Market Maker in the event that the Member has a system issue and determines to purge its quotes from the order book. The SQF Purge Port is optional as Market Makers have various ways of purging their quotes from the order book. First of all, a Market Maker may cancel quotes through SQF in their assigned option series.
CTI Ports and FIX DROP Ports are optional as Members have multiple ways of receiving information concerning open orders and executed transactions. First, FIX and OTTO protocols provide Members with real-time order execution messages similar to the Clearing Trade Interface and FIX DROP. Second, TradeInfo provides Members with the ability to query open orders and order executions real-time, at no cost, similar to the Clearing Trade Interface and FIX DROP. Third, Members receive free daily reports listing open orders and trade executions from the Exchange. While not real-time, the Open Orders Report and Trade Detail Report provide Members with information similar to the Clearing Trade Interface and FIX DROP.
With respect to Disaster Recovery Ports, the Exchange proposes to assess no fee for the first FIX Disaster Recovery Port obtained by an Electronic Access Member or the first SQF Disaster Recovery Port obtained by a Market Maker. The Exchange proposes to assess no fees for these ports to provide Members with continuous access to MRX in the event of a failover at no cost. Electronic Access Members only require one FIX Disaster Recovery Port to submit orders in the event of a failover. Market Makers only require one SQF Disaster Recovery Port to submit quotes in the event of a failover. Electronic Access Members may elect to purchase additional optional FIX Disaster Recovery Ports for $50 per port, per month, per account number. Market Makers may elect to purchase additional optional SQF Disaster Recovery Ports for $50 per port, per month, per account number. The additional FIX and SQF Disaster Recovery Ports are not necessary to connect to the Exchange in the event of a failover because the Exchange has provided Members with a FIX Disaster Recovery Port and an SQF Disaster Recovery Port at no cost.
Further, the Exchange's proposal to offer Disaster Recovery Ports for SQF Purge Ports and OTTO Ports for $50 per port, per month, per account number and Disaster Recovery Ports for CTI Ports and FIX DROP Ports for $50 per port, per month is optional. As noted herein, today, there are other alternatives for these ports. The purchase of an SQF Purge Port, OTTO Port, CTI Port, and FIX DROP Port in production are optional and, therefore, so is the purchase of Disaster Recovery Ports for these ports. The proposed Disaster Recovery Port fees are intended to encourage Members to be efficient when purchasing Disaster Recovery Ports. Similar to all other ports, Disaster Recovery Ports need to be maintained by the Exchange.
Finally, in the event that an MRX Member elects to subscribe to multiple ports, the Exchange offers a monthly cap beyond which a Member would be
As noted herein, these different protocols are not all necessary to conduct business on MRX; a Member may choose among protocols based on their business workflow. The proposed port fees are similar to fees assessed today by GEMX.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to the Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for order flow, which constrains its pricing determinations. The fact that the market for order flow is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Congress directed the Commission to “rely on `competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.' ”
History of MRX Operations
Over the years, MRX has amended its transactional pricing to remain competitive and attract order flow to the Exchange.
In June 2019, MRX commenced offering complex orders.
An exchange can show that a product is “subject to significant substitution-based competitive forces” by introducing evidence that customers can substitute the product for products offered by other exchanges.
Chart 1 below shows the January 2022 market share for multiply-listed options by exchange. Of the 16 operating options exchanges, none currently has more than a 13.1% market share, and MRX has the smallest market share at 1.8%. Customers widely distribute their transactions across exchanges according to their business needs and the ability of each exchange to meet those needs through technology, liquidity and functionality. Average market share for the 16 options exchanges is 6.26 percent, with the median at 5.8, and a range between 1.8 and 13.1 percent.
Market share is the percentage of volume on a particular exchange relative to the total volume across all exchanges, and indicates the amount of order flow directed to that exchange. High levels of market share enhance the value of trading and ports.
As described in detail below, only one order protocol is required to submit orders to MRX. Quoting protocols are only required to the extent an MRX Member has been appointed as a Market Maker in an options series pursuant to Options 2, Section 1, and only one quoting protocol is necessary to quote on MRX. Members may choose a greater number of order or quote entry ports, beyond the first FIX Port and the first SQF Port which are proposed to be offered at no cost, depending on that Member's particular business model.
The experience of MRX's affiliates shows that the number of ports that members choose to purchase varies widely. For example, a review of the Phlx exchange in April 2022 shows that, among its member organizations that purchase ports, approximately 26 percent purchased 1 SQF or FIX port, another 26 percent purchased between 2 and 5 ports, 21 percent purchased between 6 and 10 ports, and 28 percent purchased more than 11 ports. This means that any MRX Member may enter all of their interest (orders or quotes) with only one order and one quote port and remain competitive.
By way of comparison, the number of ports that MRX Members purchased in April 2022 also varied widely.
Chart 2 indicates the number of FIX and SQF Ports, respectively, that MRX Members were subscribed to in April 2022. Chart 2 shows that 1 MRX Member only subscribed to 1 SQF Port and 3 MRX Members subscribed to 1 FIX Port.
Further, approximately 23 percent of MRX Members purchased 1 SQF, FIX or OTTO Port,
All of these statistics must be viewed in the context of a field with relatively low barriers to entry. MRX, like many new entrants to the field, offered ports for free to establish itself and gain market share. As new entrants enter the field, MRX can also expect competition from these new entrants. Those new entrants, like MRX, are likely to set port, or other fees to zero, increasing marketplace competition.
The Exchange notes that one MRX Member cancelled 1 SQF Port and 1 OTTO Port to avoid being assessed an SQF Port fee as of May 2, 2022.
The proposed port fees described below are in line with those of other markets. Setting a fee above competitors is likely to drive away customers, so the most efficient price-setting strategy is to set prices at the same level as other firms.
As noted above, market participants may choose to become a member of one or more options exchanges based on the market participant's business model. The Exchange believes that there are many factors that may cause a market participant to decide to become a member of a particular exchange dependent upon their business model. A very small number of market participants choose to become a member of all sixteen options exchanges. It is not a requirement for market participants to become members of all options exchanges, in fact, certain market participants conduct an options business as a member of only one options market.
Using options markets that Nasdaq operates as points of comparison, less than a third of the firms that are members of at least one of the options markets that Nasdaq operates are also Members of MRX (approximately 29%). MRX, like other options markets, has a mix of market participants as Members. Chart 3 below displays the percentage of Electronic Access Members, Market Makers and Clearing Firms on MRX.
The percentages in Chart 3 represent percentages of the total number of MRX Members. Some Members have dual representations (
The Exchange notes that no firm is a Member of MRX only. Few, if any, firms have purchased port services at MRX, notwithstanding the fact that ports are currently free, because MRX currently has less liquidity than other options markets. As explained above, MRX has the smallest market share of the 16 options exchanges, representing only approximately 1.8% of the market, and, for certain market participants, the current levels of liquidity may be insufficient to justify the costs associated with becoming a Member and connecting to the Exchange, notwithstanding the fact that ports are currently free.
The decision to become a member of an exchange, particularly for registered market makers, is complex, and not solely based on the non-transactional costs assessed by an exchange. As noted herein, specific factors include, but are not limited to: (i) an exchange's available liquidity in options series; (ii) trading functionality offered on a particular market; (iii) product offerings; (iv) customer service on an exchange; and (v) transactional pricing. Becoming a member of the exchange does not “lock” a potential member into a market or diminish the overall competition for exchange services. The decision to become a member of an exchange is made at the beginning of the relationship, and is no less subject to competition than trading fees or ports.
In lieu of becoming a member at each options exchange, a market participant may join one exchange and elect to have their orders routed in the event that a better price is available on an away market. Nothing in the Order Protection Rule requires a firm to become a Member at MRX.
With respect to the submission of orders, Members may also choose not to purchase any port at all from the Exchange, and instead rely on the port of a third party to submit an order.
Only if a market participant elects to become a Member of MRX will the market participant need to utilize a port to submit orders and/or quotes into MRX. Once an applicant is approved for membership on MRX and becomes a Member, the Exchange assigns the Member a badge
MRX is obligated to regulate its Members and secure access to its environment. In order to properly regulate its Members and secure the trading environment, MRX takes measures to ensure access is monitored and maintained with various controls. Ports are a method utilized by the Exchange to grant Members secure access to communicate with the Exchange and exercise trading rights. When a market participant elects to be a Member of MRX, and is approved for membership by MRX, the Member is granted trading rights to enter orders and/or quotes into MRX through secure ports.
As noted herein, there is no legal or regulatory requirement that a market participant become a Member of MRX, or, if it is a Member, to purchase port services beyond the one quoting protocol or one order entry protocol necessary to quote or submit orders on MRX. The Exchange proposes to offer the first FIX and SQF Port at no cost in addition to the first FIX Disaster Recovery Port and the first SQF Disaster Recovery Port at no cost.
The Exchange's proposal to amend port fees is reasonable, equitable and not unfairly discriminatory as MRX is providing MRX Electronic Access Members the first FIX Port to submit orders and MRX Market Makers the first SQF Port to submit quotes to MRX, at no cost, in addition to providing the first FIX Disaster Recovery Port and the first SQF Disaster Recovery Port at no cost; all other ports offered by MRX are optional and not necessary to trade options on the Exchange.
The proposed fees reflect the ongoing services provided to maintain and support the ports. In order to submit orders into MRX, only one order protocol is required, and MRX is providing Electronic Access Members the first FIX Port at no cost. Quoting protocols are only required to the extent an MRX Member has been appointed as a Market Maker in an options series pursuant to Options 2, Section 1. Similarly, only one quoting protocol is necessary to quote on MRX and MRX is providing Market Makers the first SQF Port at no cost. As noted above, only Members may utilize ports. A Member can send all orders, proprietary and agency, through one port to MRX and all quotes through one port. Therefore, for the foregoing reasons, it is reasonable to assess no fee for the first FIX Port obtained by an Electronic Access Member or the first SQF Port obtained by a Market Maker. Further it is equitable and not unfairly discriminatory to assess no fee for the first FIX Port to Electronic Access Members as all Electronic Access Members would be entitled to the first FIX Port at no cost. Also, it is equitable and not unfairly discriminatory to assess no fee for the first SQF Port to Market Makers as all Market Makers would be entitled to the first SQF Port at no cost. With this proposal, MRX Members may organize their business in such a way as to submit orders and/or quotes continuously to MRX at no cost.
The Exchange's proposal to assess Members $650 per port, per month, per account number for FIX Ports beyond the first port and $1,250 per port, per month for SQF Ports beyond the first port is reasonable because these ports are optional and Members only require one FIX Port to submit orders to MRX and one SQF Port to submit quotes to MRX. Members electing to subscribe to more than one FIX or SQF Port are choosing the additional ports to accommodate their business model. Additionally, to the extent a Member expended more than $7,500 for FIX Ports or more than $17,500 for SQF Ports, the Exchange would not charge an MRX Member for additional FIX or SQF Ports beyond the cap. The fees for the proposed additional FIX and SQF Ports are equitable and not unfairly discriminatory because any Member may elect to subscribe to additional ports. Electronic Access Members would be subject to the same fees for FIX Ports and Market Makers would be subject to the same fees for SQF Ports. Unlike other market participants, Market Makers are required to provide continuous two-sided quotes on a daily
The Exchange's proposal to assess $650 per port, per month, per account number for an OTTO Port is reasonable because OTTO is optional. The Exchange is offering the first FIX Port at no cost to submit orders to MRX. In addition to the FIX Port, all Members may elect to purchase OTTO to submit orders to MRX. Unlike FIX, which offers routing capability, OTTO does not permit routing. Depending on a Member's business model, Members may elect to purchase an OTTO Port in addition to the FIX Port, which is being provided at no cost. Members may prefer one protocol as compared to another protocol. For example, the ability to route may cause a Member to utilize FIX and a Member that desires to execute an order locally may utilize OTTO. Also, the OTTO Port offers lower latency as compared to the FIX Port, which may be attractive to Members depending on their trading behavior. MRX Members utilizing the FIX Port, which is offered at no cost, do not need to utilize OTTO. Members may elect to utilize both order entry protocols, depending on how they organize their business. OTTO provides MRX Members with an additional choice as to the type of protocol that they may use to submit orders to the Exchange. Today, Phlx and BX offer only a FIX Port to submit orders on those options markets.
The Exchange's proposal to offer an SQF Purge Port for $1,250 per port, per month is reasonable because this port is optional. The SQF Purge Port is designed to assist Market Makers in the management of, and risk control over, their quotes. Market Makers may utilize a purge port to reduce uncertainty and to manage risk by purging all quotes in their assigned options series. Of note, Market Makers may only enter interest into SQF in their assigned options series. Additionally, the SQF Purge Port may be utilized by a Market Maker in the event that the Member has a system issue and determines to purge from the order book. The SQF Purge Port is optional as Market Makers have various ways of purging their quotes from the order book. First of all, a Market Maker may cancel quotes through SQF in their assigned options series in the same manner as they may cancel quotes with an SQF Purge Port.
The Exchange's proposal to assess $650 per port, per month for CTI Ports and FIX DROP Ports is reasonable because these ports are optional because Members have various ways of receiving information concerning open orders and executed transactions. First, FIX and OTTO provide Members with real-time order executions similar to the Clearing Trade Interface and FIX DROP. Second, TradeInfo provides Members with the ability to query open orders and order executions real-time, at no cost, similar to the Clearing Trade Interface and FIX DROP. Third, Members receive free daily reports listing open orders and trade executions from the Exchange. While not real-time, the Open Orders Report and Trade Detail Report provide Members with information similar to the Clearing Trade Interface and FIX DROP. The proposed CTI and FIX DROP Ports are equitable and not unfairly discriminatory because any Member may elect to purchase an optional CTI Port or FIX DROP Port and would be subject to the same fee.
The Exchange's proposal to assess no fee for the first FIX Disaster Recovery Port or the first SQF Disaster Recovery Port is reasonable because it will provide Members with continuous access to MRX in the event of a failover, at no cost. Further it is equitable and not unfairly discriminatory to assess no fee for the first FIX Disaster Recovery Port to Electronic Access Members as all Electronic Access Members would be entitled to the first FIX Disaster Recovery Port at no cost. Also, it is equitable and not unfairly discriminatory to assess no fee for the first SQF Disaster Recovery Port to Market Makers as all Market Makers would be entitled to the first SQF Disaster Recovery Port at no cost.
The Exchange's proposal to assess Members $50 per port, per month, per account number for optional FIX Disaster Recovery Ports beyond the first port offered at no cost and $50 per port, per month, per account number for optional SQF Disaster Recovery Ports beyond the first port offered at no cost is reasonable because these ports are optional and Members only require one FIX Disaster Recovery Port to submit orders to MRX in the event of a failover and one SQF Disaster Recovery Port to submit quotes to MRX in the event of a failover. Additionally, to the extent a Member expended more than $7,500 for Disaster Recovery Ports, the Exchange would not charge an MRX Member for additional Disaster Recovery Ports beyond the cap. The fees for the proposed additional FIX and SQF Disaster Recovery Ports are equitable and not unfairly discriminatory because any Member may elect additional ports and would be subject to the same fees.
The Exchange's proposal to offer Disaster Recovery Ports for SQF Purge Ports, and OTTO Ports at $50 per port, per month, per account number and CTI Ports, and FIX DROP Ports for $50 per port, per month is reasonable because these ports are optional. As noted herein, there are other alternatives for all of these ports today, the purchase of an SQF Purge Port, OTTO Port, CTI Port, and FIX DROP Port in production is optional and, therefore, so is the purchase of Disaster Recovery Ports for these ports. The proposed Disaster Recovery Port fees are intended to encourage Members to be efficient when purchasing Disaster Recovery Ports. The proposed Disaster Recovery Ports are equitable and not unfairly discriminatory because any Member may elect to purchase an optional Disaster Recovery Port and would be subject to the same fee, depending on the port.
Finally, in the event that an MRX Member elects to subscribe to multiple ports, the Exchange offers a monthly cap beyond which a Member would be assessed no additional fees for month. As noted above, the SQF Port and the SQF Purge Port are subject to a monthly cap of $17,500 and the OTTO Port, CTI Port, FIX Port, FIX Drop Port and all Disaster Recovery Ports are subject to a monthly cap of $7,500. These caps are reasonable because they allow Members to limit their fees beyond a certain level if they elect to purchase multiple ports in a given month. The caps are also equitable and not unfairly discriminatory because any Member will be subject to the cap, provided they exceeded the appropriate dollar amount in a given month.
The proposed port fees are similar to the fees assessed by GEMX.
After 6 years, MRX proposes to commence assessing port fees, just as all other options exchanges while offerings its Members the ability to submit orders and quotes to the Exchange at no cost. The introduction of these fees will not impede a Member's access to MRX, but rather will allow MRX to continue to compete and grow its marketplace so that it may continue to offer a robust trading architecture, a quality opening process, an array of simple and complex order types and auctions, and competitive transaction pricing. If MRX is incorrect in its assessment of the value of its services, that assessment will be reflected in MRX's ability to compete with other options exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes its proposal to offer the first FIX and SQF Ports for free, as well as the first Disaster Recovery version of these ports, positions MRX as a competitive market among other options exchanges, all of which assess fees for the first order and/or quote protocols. MRX's offering would permit Electronic Access Members and Market Makers the ability to submit orders and quote to MRX at no cost. The remainder of the port offerings are optional. The Exchange believes that the optional port offerings permit MRX to remain competitive with other options markets in its offerings.
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
By way of example, today, with the exception of Precise, ISE has identical functionality to MRX. Market participants may elect to become members of ISE instead of MRX if those market participants believe that the order flow on ISE provides more value than the order flow on MRX. ISE has more market share (6.2%) as compared to MRX (1.8%). A market participant may evaluate the fees assessed by ISE, its market share, and proprietary products, among other things, and determine to become a member of ISE instead of MRX if it determines the proposed fees to be unreasonable.
The proposed port fees are similar to port fees assessed by GEMX
Only one account number is necessary per Member and account numbers are free.
As noted above, the remainder of the proposed port fees are for optional ports (additional FIX and SQF Ports, additional FIX and SQF Disaster Recovery Ports, SQF Purge Port, OTTO Port, CTI Port, FIX DROP Port and Disaster Recovery Ports for SQF Purge Ports, OTTO Ports, CTI Ports, and FIX DROP Ports). These different protocols are not all necessary to conduct business on MRX. Members choose among the protocols based on their business workflow. The proposed fees do not impose an undue burden on competition because the Exchange would uniformly assess the port fees to all Members and would uniformly apply monthly caps. Market participants may also connect to third parties instead of directly to the Exchange.
With respect to the higher fees assessed for SQF Ports and SQF Purge Ports, the Exchange notes that only Market Makers may utilize these ports. Market Makers are required to provide continuous two-sided quotes on a daily basis,
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
The Commission:
Kieran G. Brown, Senior Counsel, or Terri Jordan, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' first amended and restated application, dated September 1, 2022, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at,
For the Commission, by the Division of Investment Management, under delegated authority.
On July 8, 2022, Cboe Exchange, Inc. (“Cboe” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Exchange proposes to amend Cboe Rule 5.6 (for simple DAC orders) and Cboe Rule 5.33 (for complex DAC orders) to allow DAC orders to be submitted in any FLEX option, including equity options, except that a simple DAC order submitted in a single stock equity option may not be submitted until 45 minutes prior to the market close and may not be submitted on its expiration day.
A DAC order is an order for which the System
The Exchange states that DAC orders are designed to allow investors to incorporate any upside market moves that may occur following execution of the order up to the market close while limiting downside risk. The Exchange states that significant numbers of market participants interact in the equity markets near the market close, which may substantially impact the price of an underlying equity security at the market close. For example, the Exchange understands that market makers and other liquidity providers seek to balance their books before the market close and contribute to increased price discovery surrounding the market close. The Exchange also understands it is common for other market participants to seek to offset intraday positions and mitigate exposure risks based on their predictions of the closing underlying prices. The Exchange notes that this substantial activity near the market close may create wider spreads and increased price volatility, which may attract further trading activity from those participants seeking arbitrage opportunities and further drive prices. The significant liquidity and price/value movements in securities, including equity securities, that can occur near the market close may cause option closing and settlement prices to deviate significantly from option execution prices earlier that trading day. As such, the Exchange wishes to provide its investors with the same opportunities to incorporate any upside market moves that may occur following execution of the order up to the market close while limiting downside risk in their equity options trading as currently provided for their ETP and index options trading by making DAC orders available in equity options.
The Exchange states that DAC orders are intended to benefit investors that participate in defined-outcome strategies,
Consistent with the foregoing rationale, the Exchange proposes to make the DAC order instruction available for orders submitted in any FLEX option, including equity options. In particular, the proposed rule change amends the definition of a DAC order (simple and complex)
The Exchange proposes to limit the use of the DAC orders in equity options until 45 minutes prior to the market close and on its expiration day to
Under this proposal, the current rules regarding the entry, execution and processing of DAC orders submitted in ETP and index options would apply to DAC orders submitted in equity options.
Finally, Cboe represents that it has analyzed its capacity and that it believes that OPRA and it have the necessary systems capacity to handle any additional order traffic, and the associated restatements, that may result from the submission of DAC orders in equity options and represents that it continues to have an adequate surveillance program in place to monitor orders with DAC pricing, including such orders in equity options. The Exchange also represents that it has not observed any impact on pricing or price discovery at or near the market close as a result of DAC orders submitted in ETP and index options and does not believe that making DAC orders available in equity options will have any impact on pricing or price discovery at or near the market close.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange proposes to expand the DAC order instruction, currently available for FLEX options on ETPs and indexes, to any FLEX option, including equity options. As with existing DAC orders for ETPs and indexes, DAC orders on single stock equity options will be available for use with both simple and complex orders in electronic or open outcry auctions. In addition, simple DAC orders submitted in a single stock equity option may not be submitted until 45 minutes prior to the market close and may not be submitted on its expiration day. In all other material respects, DAC orders in single equity options will operate the same way as DAC orders on ETPs and indexes. The Exchange states that the same rules regarding the entry, execution and processing of DAC orders submitted in ETP and index options will apply to DAC orders submitted in equity options.
The Commission believes that the proposed rule change is reasonably designed to allow market participants to more effectively incorporate the closing price of the underlying into the execution price of the FLEX equity option, which should facilitate the ability of market participants to execute certain investment strategies. Specifically, as the Exchange notes, the DAC order instruction would allow FLEX equity option orders to be executed at a time before the close, eliminating execution risk near the market close and thereby realizing the objective of pricing based on the exact underlying closing prices.
The Commission notes that all DAC orders, including DAC orders in single stock equity options, will be entered and processed pursuant to the existing FLEX rules like any other order that is submitted into a FLEX electronic or open outcry auction.
Additionally, the Commission believes that the proposed restrictions in connection with the submission of simple DAC orders in equity options are designed to prevent fraudulent and manipulative acts and practices and protect investors by mitigating the potential risk associated with expiration day price swings, which may potentially
Finally, the Commission notes that the Exchange represents that: (1) it believes the Exchange and OPRA have the necessary systems capacity to handle any additional order traffic, and the associated restatements, that may result from the submission of DAC orders in equity options; (2) it continues to have an adequate surveillance program in place to monitor orders with DAC pricing, including such orders in equity options; (3) it intends to further enhance its surveillances to, among other things, monitor for certain changes in delta and stock price between an original order and the final terms of execution and to generally monitor activity in the underlying potentially related to DAC trades; (4) it has not observed any impact on pricing or price discovery at or near the market close as a result of DAC orders submitted in ETP and index options and does not believe that making DAC orders available in equity options will have any impact on pricing or price discovery at or near the market close; and (5) it has not identified an impact on pricing or price discovery at or near the close as a result of exercise prices for FLEX Equity Options series formatted as a percentage of the closing value of the underlying security, which is similar to a DAC order instruction and currently permitted on the Exchange.
Accordingly, for the foregoing reasons, the Commission believes that this proposed rule change is consistent with the Exchange Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Minnesota dated 09/07/2022.
Issued on 09/07/2022.
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 Administrator's disaster declaration, applications for disaster loans may be filed 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 17612 6 and for economic injury is 17613 0.
The State which received an EIDL Declaration # is Minnesota.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Administrative declaration of disaster for the State of CALIFORNIA dated 08/09/2022.
Issued on 09/07/2022.
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,
The notice of the Administrator's disaster declaration for the State of California, dated 08/09/2022 is hereby amended to establish the incident period for this disaster as beginning 07/22/2022 and continuing through 08/16/2022.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Administrative declaration of disaster for the State of California dated 08/19/2022.
Issued on 09/07/2022.
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.
The notice of the Administrator's disaster declaration for the State of California, dated 08/09/2022 is hereby amended to establish the incident period for this disaster as beginning 07/29/2022 and continuing through 08/22/2022.
All other information in the original declaration remains unchanged.
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to an agreement with their foreign owner or custodian for temporary display in the exhibition “Botticelli and Renaissance Florence: Masterworks from the Uffizi” at the Minneapolis Institute of Art, Minneapolis, Minnesota, 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,
Wheeling & Lake Erie Railway Company (W&LE) has filed a verified notice of exemption under 49 CFR 1180.2(d)(4) to renew its sublease of approximately 120 miles of rail line of the Pittsburgh & West Virginia Railroad (PWV), principally extending between Pittsburgh Junction, Ohio, and Connellsville, Pa., with short branch lines extending to Clairton and Mifflin Junction, Pa. (the Lines). W&LE states that the Lines have been leased by Norfolk Southern Railway Company (NSR) and its predecessors in interest since 1962. According to the verified notice, W&LE has subleased and provided all rail operations on the Lines since 1990. W&LE states that it has renewed the sublease for an additional period of ninety-nine (99) years, from October 16, 2062, to October 16, 2161.
According to the verified notice W&LE seeks to renew its current lease and sublease arrangements for the Lines to provide stability and certainty for W&LE's operation and to accommodate long-term planning and investment for those lines.
As a condition to the use of this exemption, any employees affected by this transaction will be protected by the conditions imposed in
The transaction may be consummated on or after September 28, 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) 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 September 22, 2022 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36639, 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 W&LE's representative: Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208.
According to W&LE, 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.
Susquehanna River Basin Commission.
Notice.
This notice lists Approvals by Rule for projects by the Susquehanna River Basin Commission during the period set forth in
August 1-31, 2022.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(e) and 18 CFR 806.22(f) for the time period specified above:
1. LSC Communications US, LLC ; Pad ID: Lancaster West Plant; ABR-202208003; City of Lancaster, Lancaster County, Pa.; Consumptive Use of Up to 0.099 mgd; Approval Date: August 26, 2022.
1. Chesapeake Appalachia, L.L.C.; Pad ID: Champluvier; ABR-201007105.R2; Tuscarora Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 22, 2022.
2. Chesapeake Appalachia, L.L.C.; Pad ID: Dewees; ABR-201007063.R2; Rome Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 22, 2022.
3. Chesapeake Appalachia, L.L.C.; Pad ID: Kenyon; ABR-20100557.R2; Overton Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 22, 2022.
4. Chesapeake Appalachia, L.L.C.; Pad ID: Lopatofsky NEW; ABR-201007100.R2; Washington Township, Wyoming County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 22, 2022.
5. Chesapeake Appalachia, L.L.C.; Pad ID: Ruth; ABR-201507008.R1; Meshoppen Township, Wyoming County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 22, 2022.
6. Coterra Energy Inc.; Pad ID: DeckerT P1; ABR-201504005.R1; Harford Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 22, 2022.
7. Coterra Energy Inc.; Pad ID: Dobrosielski P1; ABR-201107051.R2; Auburn Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 22, 2022.
8. Coterra Energy Inc.; Pad ID: Rayias P1; ABR-20100432.R2; Dimock Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 22, 2022.
9. Coterra Energy Inc.; Pad ID: ReillyJ P1; ABR-201207017.R2; Gibson Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 22, 2022.
10. Inflection Energy (PA) LLC; Pad ID: Converse Well Site; ABR-201707001.R1; Mill Creek Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
11. Repsol Oil & Gas USA, LLC; Pad ID: Clegg 722; ABR-201007119.R2; McNett Township, Lycoming County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 22, 2022.
12. Repsol Oil & Gas USA, LLC; Pad ID: CRANK (03 067) O; ABR-20100430.R2; Columbia Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 22, 2022.
13. Repsol Oil & Gas USA, LLC; Pad ID: FEUSNER (03 045) J; ABR-201007095.R2; Columbia Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 22, 2022.
14. Repsol Oil & Gas USA, LLC; Pad ID: KIRKOWSKI (01 066) J; ABR-201007091.R2; Canton Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 22, 2022.
15. Repsol Oil & Gas USA, LLC; Pad ID: MCMURRAY (01 031) C; ABR-201007054.R2; Canton Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 22, 2022.
16. Seneca Resources Company, LLC; Pad ID: Baldwin 881; ABR-201007068.R2; Farmington Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
17. Seneca Resources Company, LLC; Pad ID: Cleveland 616; ABR-201007089.R2; Delmar Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
18. Seneca Resources Company, LLC; Pad ID: Lehmann Pad K; ABR-201007115.R2; Covington Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
19. Seneca Resources Company, LLC; Pad ID: Reese 289; ABR-201007057.R2; Charleston Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
20. Seneca Resources Company, LLC; Pad ID: Seeley 524; ABR-201007122.R2; Rutland Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
21. Seneca Resources Company, LLC; Pad ID: Wolfe 1114; ABR-201007098.R2; Nelson Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 22, 2022.
22. BKV Operating, LLC; Pad ID: Ruark East 1 1H; ABR-201008001.R2; Washington Township, Wyoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 26, 2022.
23. Chesapeake Appalachia, L.L.C.; Pad ID: Boy Scouts Drilling Pad; ABR-201207023.R2; Elkland Township, Sullivan County, Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: August 26, 2022.
24. Chesapeake Appalachia, L.L.C.; Pad ID: EDF NEW; ABR-201007125.R2; Mehoopany Township, Wyoming County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 26, 2022.
25. Chesapeake Appalachia, L.L.C.; Pad ID: Petty; ABR-201007126.R2; Leroy Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 26, 2022.
26. EQT ARO LLC; Pad ID: COP Tr 285 Pad F; ABR-201008007.R2; Chapman Township, Clinton County,
27. EQT ARO LLC; Pad ID: COP Tr 356 Pad A; ABR-201007073.R2; Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 26, 2022.
28. EQT ARO LLC; Pad ID: COP Tr 356 Pad I; ABR-201007114.R2; Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 26, 2022.
29. Chesapeake Appalachia, L.L.C.; Pad ID: Felter-NEW; ABR-201008026.R2; Wyalusing Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 30, 2022.
30. Chesapeake Appalachia, L.L.C.; Pad ID: Joanclark; ABR-201008025.R2; Fox Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 30, 2022.
31. Coterra Energy Inc.; Pad ID: BusikJ P1; ABR-201206001.R2; Dimock Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 30, 2022.
32. Coterra Energy Inc.; Pad ID: ForwoodE P1; ABR-201506002.R1; Lenox Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 30, 2022.
33. EQT ARO LLC; Pad ID: Charles J. McNamee Pad B; ABR-201008016.R2; Cascade Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 30, 2022.
34. EQT ARO LLC; Pad ID: Elbow Pad C; ABR-201008017.R2; Cogan House Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 30, 2022.
35. EQT ARO LLC; Pad ID: Jack L. Hipple Pad A; ABR-201008021.R2; Gamble Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 30, 2022.
36. Repsol Oil & Gas USA, LLC; Pad ID: ALDERSON (05 009) V; ABR-201008022.R2; Pike Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 30, 2022.
37. Repsol Oil & Gas USA, LLC; Pad ID: McNett 708; ABR-201008003.R2; Liberty Township, Tioga County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 30, 2022.
38. Seneca Resources Company, LLC; Pad ID: Miller 394; ABR-201008005.R2; Delmar Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 30, 2022.
39. EQT ARO LLC; Pad ID: Don J. Davis Pad A; ABR-201008028.R2; Gamble Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 31, 2022.
40. Seneca Resources Company, LLC; Pad ID: DCNR Tract 595 Pad I; ABR-201008043.R2; Bloss Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 31, 2022.
41. Seneca Resources Company, LLC; Pad ID: Hazelton 424; ABR-20100626.R2; Shippen Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 31, 2022.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 4, 2022.
Send comments identified by docket number FAA-2022-0063 using any of the following methods:
•
•
•
•
Sean O'Tormey at 202-267-4044, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration, DOT.
Notice of request to release airport land.
The Federal Aviation Administration (FAA) is considering a proposal and invites public comment to change a portion of the airport from aeronautical use to non-aeronautical use at Paso Robles Municipal Airport (PRB), San Luis Obispo County, California. The proposal consists of one parcel containing 22.07 acres of airport land located southwest corner of the airport facility North of Airport Road and West of Satellite Drive.
Comments must be received on or before October 14, 2022.
Comments on the request may be mailed or delivered to the FAA at the following address: Ms. Laurie J. Suttmeier, Manager, San Francisco Airports District Office, Federal Aviation Administration, 1000 Marina Boulevard, Suite 220, Brisbane, California, 94005-1835. In addition, one copy of the comment submitted to the FAA must be mailed or delivered to Mr. Mark Scandalis, Airport Manager, Paso Robles Municipal Airport, 4912 Wing Way, Paso Robles, California 93446.
The land was originally acquired from the federal government as surplus land, via quitclaim deed issued by the War Assets Administration on August 5, 1948. Subsequently, the County of San Luis Obispo transferred Paso Robles Municipal Airport to the City of Paso Robles which accepted the airport via Resolution on December 28, 1972. The land will be leased for non-aeronautical revenue generation. Such use of the land represents a compatible land use that will not interfere with the airport or its operation, thereby protecting the interests of civil aviation. The airport will be compensated for the fair market value of the use of the land.
In accordance with the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), Public Law 106-181 (Apr. 5, 2000; 114 Stat. 75), this notice must be published in the
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 4, 2022.
Send comments identified by docket number FAA-2022-1133 using any of the following methods:
•
•
•
•
Jake Troutman, (202) 683-7788, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration, (FAA), DOT.
Solicitation of applications.
By
Persons interested in applying for the NPOAG opening representing Native American concerns will need to apply by October 31, 2022.
Keith Lusk, Special Programs Staff, Federal Aviation Administration, Western-Pacific Region Headquarters, 777 S Aviation Boulevard, Suite 150, El Segundo, CA 90245, telephone: (424) 405-7017, email:
The National Parks Air Tour Management Act of 2000 (the Act) was enacted on April 5, 2000, as Public Law 106-181, and subsequently amended in the FAA Modernization and Reform Act of 2012. The Act required the establishment of the advisory group within one year after its enactment. The NPOAG was established in March 2001. The advisory group is comprised of a balanced group of representatives of general aviation, commercial air tour operations, environmental concerns, and Native American tribes. The Administrator of the FAA and the Director of NPS (or their designees) serve as ex officio members of the group. Representatives of the Administrator and Director serve alternating 1-year terms as chairman of the advisory group.
In accordance with the Act, the advisory group provides “advice, information, and recommendations to the Administrator and the Director—
(1) On the implementation of this title [the Act] and the amendments made by this title;
(2) On commonly accepted quiet aircraft technology for use in commercial air tour operations over a national park or tribal lands, which will receive preferential treatment in a given air tour management plan;
(3) On other measures that might be taken to accommodate the interests of visitors to national parks; and
(4) At the request of the Administrator and the Director, safety, environmental, and other issues related to commercial air tour operations over a national park or tribal lands.”
The current NPOAG is made up of one member representing general aviation, three members representing the commercial air tour industry, four members representing environmental concerns, and two members representing Native American interests. Current members of the NPOAG are as follows:
Murray Huling representing general aviation; John Becker, James Viola, and Eric Lincoln representing commercial air tour operators; Dick Hingson, Les Blomberg, Robert Randall, and John Eastman representing environmental interests; and Carl Slater represents Native American tribes with one current opening.
Robert Randall, a member of the National Parks Conservation Association, has been selected for another 3 year term to represent environmental concerns. NPOAG members' 3-year terms commence on the publication date of this
On August 13, 2014, the Office of Management and Budget issued revised guidance regarding the prohibition against appointing or not reappointing federally registered lobbyists to serve on advisory committees (79 FR 47482).
Therefore, before appointing an applicant to serve on the NPOAG, the FAA and NPS will require the prospective candidate to certify that they are not a federally registered lobbyist.
Federal Motor Carrier Safety Administration, Department of Transportation
Notice of a modified system of records notice.
In accordance with the Privacy Act of 1974, the Department of Transportation (DOT), Federal Motor Carrier Safety Administration (FMCSA) proposes to modify and reissue an existing system of records notice titled “DOT/FMCSA 010, Drug and Alcohol Clearinghouse (Clearinghouse)”. This system of records allows FMCSA to collect and maintain records on commercial motor vehicle (CMV) drivers subject to the commercial driver's license (CDL) and commercial learner's permit (CLP) regulations who have received verified positive DOT drug or alcohol test results, refuse such testing, or otherwise violate FMCSA's drug and alcohol use prohibitions. The Clearinghouse also collects and maintains records on the completion of substance abuse programs as part of the return-to-duty process, as well as forms evidencing drivers' consent to the release of information. In addition, the Clearinghouse collects and maintains records of queries of the system conducted by employers, or service agents acting on their behalf, and State Driver Licensing Agencies (SDLAs). The information in this system is used to enhance compliance with drug and alcohol use and testing regulations by identifying drivers who have committed drug and alcohol violations that render them ineligible to operate a CMV.
Written comments should be submitted on or before October 14, 2022. The Department may publish an amended SORN in light of any comments received. This new system will be effective October 14, 2022.
You may submit comments, identified by docket number 2022-0029 by one of the following methods:
•
•
•
•
For system-related questions please contact Bryan Price, Chief, Drug and Alcohol Programs Division, Office of Safety Programs, Federal Motor Carrier Safety Administration, Email:
This Notice includes both substantive changes and non-substantive changes to the previously published Notice.
This modified system will be included in the DOT inventory of record systems.
In accordance with the Privacy Act of 1974, FMCSA is modifying and reissuing a system of records titled “DOT/FMCSA 010—Drug and Alcohol Clearinghouse (Clearinghouse).” This system collects information related to violations of the Agency's drug and alcohol testing program regulations committed by CMV operators subject to the CDL and CLP regulations set forth in 49 CFR part 383. FMCSA published the initial system of records notice for the Clearinghouse on October 22, 2019 (84 FR 56521). The records are collected and maintained for the purposes of:
• informing current and prospective employers of CMV drivers whether the driver is prohibited from operating a CMV due to drug and alcohol program violations;
• informing SDLAs and Motor Carrier Safety Assistance Program (MCSAP) enforcement officers whether the driver is prohibited from operating a CMV due to drug and alcohol program violations;
• providing drug and alcohol program violation information, upon request from the National Transportation Safety Board (NTSB), about a driver involved in a crash under investigation by the NTSB.
The Clearinghouse is a tool FMCSA, employers, prospective employers, and SDLAs use to identify drivers who are prohibited from operating a CMV, based on DOT drug and alcohol program violations, and ensure that such drivers receive the required substance abuse evaluation and treatment before operating a CMV on public roads. The requirements and procedures for use of the Clearinghouse by employers, drivers and specified service agents are set forth in 49 CFR part 382, subpart G.
Employers or their designated service agents (Consortia/Third-Party Administrators (C/TPA)) are required to query the Clearinghouse using the CDL number of the driver to search for any drug and alcohol program violations before hiring a prospective driver, and at least annually for all currently employed drivers. Queries of the Clearinghouse fall into one of two categories: limited or full. Both limited and full queries require a driver's consent before any information can be released about that driver. A limited query of the Clearinghouse will inform the employer or C/TPA whether any violation-related information about the driver exists; however, a limited query does not result in the release of any detailed violation information. To view detailed violation information contained in the Clearinghouse, the employer or C/TPA must perform a full query. Once a driver's specific consent is obtained, a full query returns the following information about the driver:
When an employer queries the driver as a pre-employment check, a full query must be conducted. In accordance with 49 CFR 382.701(c), if additional information is entered on the driver within 30 days of the pre-employment query, the Clearinghouse sends an electronic notification to the employer or C/TPA indicating additional information has been added to a previously queried record. The employer must log in to the Clearinghouse and obtain specific consent from the driver before the details of this newly reported information are disclosed. An annual query may be conducted as either a limited query or a full query.
A limited query requires a driver's general consent, which may be effective for an indefinite period (
When conducting a full query, the employer or C/TPA must obtain specific consent from the driver by logging into the Clearinghouse and requesting that the driver provide consent to release full query results. To grant or decline specific consent, the driver must register in the Clearinghouse to establish an account. If the driver provides consent, the employer will receive notification of
In accordance with the Clearinghouse regulations if an employer is unable to obtain either general consent from a driver for a limited query, or specific consent for a full query, the employer must remove the driver from performing safety-sensitive functions, including operating a CMV, as described below.
On October 7, 2021, FMCSA published a final rule entitled “Controlled Substances and Alcohol Testing: State Driver's Licensing Agency Non-Issuance/Downgrade of Commercial's Driver's License” (86 FR 55718) (2021 final rule). The rule requires SDLAs, prior to completing a commercial licensing transaction, to access and use driver-specific information from the Clearinghouse to determine whether, pursuant to 49 CFR 382.501(a), a driver is prohibited from operating a CMV due to drug and alcohol program violations. The requirements and procedures for SDLAs' use of the Clearinghouse are set forth in 49 CFR part 383. If the applicant is prohibited from operating, the SDLA must not complete the licensing transaction, resulting in non-issuance of the CLP or CDL. The rule also requires that SDLAs downgrade the CLP or CDL of any driver prohibited from operating a CMV and revises how reports of actual knowledge of drug or alcohol use, based on the issuance of a citation for DUI in CMV, will be maintained in the system. Under then-current regulations, drivers could request the removal of an employer's report of actual knowledge of use, based on a traffic citation for driving a CMV under the influence of controlled substances or alcohol, if the citation did not result in the driver's conviction. The 2021 final rule amended 49 CFR 382.717 so that drivers can no longer request removal of the citation but may add documentary evidence of non-conviction to their Clearinghouse record.
The following substantive changes have been made to this Notice:
1.
2.
3.
In this Notice, FMCSA adds four new system-specific routine uses to support enforcement of drug and alcohol use and testing regulations and to implement regulatory requirements pertaining to States (SDLAs).
The first new routine use allows SDLAs to receive notification from FMCSA of a CMV driver's operating status (
The second new routine use allows notification to employers when new information has been added to the Clearinghouse record of a CMV driver about whom the employer has either queried the Clearinghouse, or reported information to the Clearinghouse, in the past 12 months (
The third new routine use allows employers, confirmed by FMCSA to currently employ CMV drivers prohibited under 49 CFR 382.501(a) from operating a CMV due to drug and alcohol program violations reported to the Clearinghouse by another employer or prospective employer, to be notified of the driver's prohibited operating status. The employer must log in to the Clearinghouse and obtain specific consent from the driver before details of this newly reported violation will be disclosed. However, upon receiving notification that the driver is prohibited from operating a CMV, the employer must not allow the driver to perform safety-sensitive functions, in accordance with 49 CFR 382.501(b).
The fourth new routine use allows employers who are notified by FMCSA of a driver's disqualification under 49 CFR 391.41(b)(12) for prohibited controlled substances use to receive details of the positive test result violation from the Clearinghouse. Under this routine use, FMCSA will provide the required employer notification of the driver's disqualification under 49 CFR 391.41(b)(12) for CDL or CLP holders who continue to operate a CMV in violation of 49 CFR 382.501(a).
The new routine uses are compatible with the purpose for which the information was collected, directly furthering the goals of 49 U.S.C. 31306a, to improve roadway safety and enhance compliance with drug and alcohol use and testing regulations.
The following non-substantive changes have been made to the background, system manager, purposes, categories of individuals covered by the system, categories of records in the system, record source categories, and policies and practices for retrieval, to improve the readability and transparency of this Notice:
1. Background: This Notice updates background to add information about FMCSA's recent amendments to 49 CFR parts 382 and 383. This Notice also updates the background to eliminate redundancies in the description of the limited and full query processes as set forth in the previous Notice and to conform the description of CMV drivers subject to FMCSA's drug and alcohol use and testing regulations to existing regulatory text in 49 CFR 382.103(a). These updates are made to improve clarity and do not reflect any change in either the Clearinghouse query processes or the population of CMV drivers about whom information is maintained in the System.
2. System Manager: This Notice updates the system manager to include contact information for FMCSA's Drug and Alcohol Programs Division, Office of Safety Programs and to delete contact information for the Compliance Division, Office of Enforcement and Compliance. This change reflects a reorganization within FMCSA and is compatible with the purpose of this system of records.
3. Purposes: This Notice updates the purposes to add specific references to FMCSA's MCSAP partners and to SDLAs to improve the clarity of the description. In addition, this Notice updates the purposes to conform the description of CMV drivers subject to FMCSA's drug and alcohol use and
4. Categories of Individuals: This Notice updates categories of individuals to conform the description of CMV drivers subject to FMCSA's drug and alcohol use and testing regulations to existing regulatory text in 49 CFR 382.103(a). The previous Notice described the CMV drivers as “CLP and CDL holders”; this Notice changes that reference to “CMV drivers who are subject to the CDL and CLP requirements of 49 CFR part 383.” FMCSA makes this update to improve clarity; it does not reflect any change in the population of CMV drivers about whom information is maintained in this System.
5. Categories of Records: This Notice updates categories of records to conform the description of CMV drivers subject to FMCSA's drug and alcohol use and testing regulations with existing regulatory text in 49 CFR 382.103(a). The previous Notice described the CMV drivers as “CLP and CDL holders”; this Notice changes that reference to “CMV drivers who are subject to the CDL and CLP requirements of 49 CFR part 383.” FMCSA makes this update to improve clarity; it does not reflect any change in the population of CMV drivers about whom information is maintained in this System.
6. Record Source Categories: This Notice updates record source categories to conform the description of CMV drivers subject to FMCSA's drug and alcohol use and testing regulations with existing regulatory text in 49 CFR 382.103(a). The previous Notice described the CMV drivers as “CLP and CDL holders”; this Notice changes that reference to “CMV drivers who are subject to the CDL and CLP requirements of 49 CFR part 383.” FMCSA makes this update to improve clarity; it does not reflect any change in the population of CMV drivers about whom information is maintained in this system.
7. Policies and Practices for Retrieval: To improve clarity, this Notice updates policies and practices to replace “CDL holder” with “CMV driver” and to specify that State issuance pertains to CDLs and CLPs.
The Privacy Act governs the means by which the 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. The Privacy Act extends rights and protections to individuals who are 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. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act. In accordance with 5 U.S.C. 552a(r), DOT has provided a report of this system of records to the Office of Management and Budget and to Congress.
Below is the description of the Clearinghouse System of Records. In accordance with 5 U.S.C. 552a(r), DOT has provided a report of this modified system of records to the OMB and to Congress.
DOT/FMCSA 010- Commercial Driver's License Drug and Alcohol Clearinghouse (Clearinghouse).
Unclassified.
Records are maintained in a FedRAMP-certified third-party cloud environment. The contracts are maintained by DOT at 1200 New Jersey Avenue SE, Washington, DC 20590.
Chief, Drug and Alcohol Programs Division, Office of Safety Programs, FMCSA, U.S. DOT, 1200 New Jersey Avenue SE, Washington, DC 20590;
49 U.S.C. 31305(a), 31306, 31306a(a)(1), 31308, and 31311; CFR part 382 subpart G; and 49 CFR part 383.
The purpose of the Clearinghouse is to: (1) improve compliance with the DOT's controlled substances and alcohol testing program applicable to CMV drivers who are subject to the CDL and CLP requirements of 49 CFR part 383; and (2) enhance the safety of U.S. roadways by reducing crashes and injuries involving drivers violating alcohol or controlled substances regulations (49 U.S.C. 31306a(a)(2)). FMCSA and its MCSAP partners, motor carrier employers, and State Driver Licensing Agencies use information in the Clearinghouse records to identify drivers who are prohibited from operating a CMV and must receive the required evaluation and treatment before resuming safety-sensitive functions. Safety-sensitive functions are defined in 49 CFR 382.107 as the time from when a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions include driving a CMV on public roads.
Categories of individuals within this system include: CMV drivers subject to the CDL and CLP requirements of 49 CFR part 383, Medical Review Officers (MRO), Substance Abuse Professionals (SAP), employers, and Consortia/Third-Party Administrators (C/TPA).
Categories of records in the system include:
The following information about CMV drivers is subject to the CDL and CLP requirements of 49 CFR part 383:
• Name.
• Contact Information including physical address, phone number(s) and email address.
• Date of birth.
• Current and previous CLP or CDL license number, state of issuance, and expiration date.
• Drug or alcohol test results and violation information including employer name, address, and USDOT#, as applicable.
• CMV driving eligibility status.
• Driver Substance Abuse Professional (SAP) selection including SAP name, address and phone number, as applicable.
• Actual Knowledge Report Information, including violation details, documentation to support the allegation and certificate of service to the employee, as applicable.
• Failure to appear and refusal to test detail information, including documentation regarding notification of test requirement, documentation of termination or resignation and certificate of service to the employee, as applicable.
• Return to duty (RTD) eligibility date and negative test result. A negative RTD test result allows the driver to resume operation of a CMV and other safety-sensitive functions.
• Follow-up testing plan completion information.
• Query information including who requested the query and when the query was conducted.
• Query consent information including the driver's approval or refusal.
Information about MROs and SAPs as specified in 49 CFR 382.711(c) to include:
• Contact information including name, email address, phone number(s), office location addresses and applicable qualifications as per 49 CFR part 40.
Information about employers, designated agents and C/TPAs as specified in § 382.711(b) and § 382.711(d) to include:
• Contact information including name, email address, phone number(s), office location addresses.
• USDOT #, as applicable.
Records are obtained from MROs for CMV drivers subject to the CDL and CLP requirements of 49 CFR part 383 who have confirmed positive tests or test refusals. Motor carrier employers will report actual knowledge of use, alcohol confirmation test results, or test refusals. Records regarding completion of required RTD processes are obtained from SAPs and employers. Records are obtained from employers who request full query consent of drivers and the approval or rejection of the consent from the drivers. Registration information records are obtained from CMV drivers subject to the CDL and CLP requirements of 49 CFR part 383, MROs, SAPs, employers, and their designated agents when an authorized user registers for the Clearinghouse and creates a new account or when updating previous account information.
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. To Motor Carrier Safety Assistance Program (MCSAP) partner agencies, for use during investigations, roadside inspections and safety audits of motor carriers. This routine use enables the MCSAP agencies to enforce the current prohibition against operating a CMV, or performing other safety-sensitive functions, due to drug and alcohol program violations.
2. To State Driver's Licensing Agencies for the purpose of verifying a driver's qualification to operate a CMV prior to completing any licensing transactions, including issuance, renewal, transfer, or upgrade of any a CLP or CDL (as mandated by 49 U.S.C. 31311(a)(24) and 31306a(h)(2)).
3. To the NTSB, upon request, when a driver is involved in a crash under investigation by the NTSB (as mandated by 49 U.S.C. 31306a(i)).
4. To State Driver Licensing Agencies, for the purpose of initiating a downgrade of the CLP or CDL of any driver prohibited from operating a CMV due to drug and alcohol program violations or reinstating the CLP or CDL when the driver is no longer prohibited from operating, as required by 49 CFR 383.73(q).
5. To employers who have either queried the Clearinghouse, or reported information to the Clearinghouse, about a CMV driver in the past 12 months, when new information about the driver has been added to the Clearinghouse by another employer. This routine use enables employers to comply with the current prohibition against allowing a driver to operate a CMV, or perform other safety-sensitive functions, due to drug and alcohol program violations.
6. To employers who currently employ a CMV driver prohibited from operating a CMV due to a drug and alcohol program violation reported to the Clearinghouse by another employer. This routine use enables current employers to comply with the prohibition against allowing a driver to operate a CMV, or perform other safety-sensitive functions, due to drug and alcohol program violations.
7. To employers notified by FMCSA that a CDL or CLP holder is disqualified under 49 CFR 391.41(b)(12) for prohibited controlled substances use. Under this routine use, FMCSA will provide the required employer notification of the driver's disqualification under 49 CFR 391.41(b)(12) for CDL or CLP holders who continue to operate a CMV in violation of 49 CFR 382.501(a).
8. 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.
9a. 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.
9b. 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.
10. Disclosure may be made to a Congressional office from the record of an individual in response to an inquiry
11. 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.
12. 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.
13. DOT may disclose records from the system, as a routine use to appropriate agencies, entities, and persons when (1) DOT suspects or has confirmed that there has been a breach of the system of records, (2) DOT has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DOT (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DOT's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
14. 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.
15. 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.
16. 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.
17. A record from this system of records may be disclosed, as a routine use, to a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a DOT decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit.
18. A record from this system of records may be disclosed, as a routine use, to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
19. DOT may disclose records from the system, as a routine use to another Federal agency or Federal entity, when DOT determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
Records in this system are stored electronically on a contractor-maintained cloud storage service.
Records may be retrieved by the following data elements: CMV driver's name, date of birth, license number, and State of issuance of the CLP or CDL.
Records will be retained and disposed of in accordance with the records control schedule titled, “Commercial Driver's License Drug and Alcohol Clearinghouse” approved by the NARA on July 23, 2019. The record schedule requires retention for 5 years if the violation is resolved and RTD is completed; after 5 years the records will be transferred to a separate location for archiving for 6 years and then the records will be destroyed. For records that have not had the RTD process successfully completed, they will remain active in the Clearinghouse for 70 years.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DOT automated systems security and access policies. Appropriate controls have been imposed to minimize the risk of compromising the information that is being stored and ensuring confidentiality of communications using tools such as encryption, authentication of sending parties, and compartmentalizing databases; and employing auditing software. Clearinghouse data is encrypted at rest and in transit. In addition, the connection between the database and the server is encrypted. Access to records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. All personnel with access to data are screened through background investigations commensurate with the level of access required to perform their duties.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request to the System Manager in writing to the address provided, or to the email provided, under “System Manager and Address.” 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 your request must conform with the Privacy Act regulations set forth in 49 CFR part 10. You must sign your request, and your 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. While no specific form is required, you should provide the following:
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DOT component agency may have responsive records; and
If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records. Without this bulleted information, the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
Individuals seeking to contest the content of any record pertaining to him or her in the system may contact the System Manager following the Privacy Act procedures in 49 CFR part 10, subpart E, Correction of Records.
Drivers may request corrections of administrative errors in their Clearinghouse record using procedures set forth in 49 CFR 382.717. Under these procedures, request for correction are limited to incorrectly reported information, not the accuracy of test results or refusals. Drivers may also request that the following information be removed from their Clearinghouse record: an employer's report of actual knowledge of use, if the employer's report does not comply with applicable documentation and notice requirements; or an employer's report of a failure to appear test refusal, if the employer's report does not comply with applicable documentation and notice requirements. Drivers may submit their request for correction or removal under 49 CFR 382.717 electronically through the Clearinghouse or in writing to FMCSA.
Requests for correction under the Privacy Act must conform with regulations set forth in 49 CFR part 10. Your request 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.
Individuals seeking to contest the content of any record pertaining to him or her in the system may contact the System Manager following the procedures described in “Record Access Procedures” above.
None.
A full notice of this system of records, DOT/FMCSA 010—Drug and Alcohol Clearinghouse, was published in the
Issued in Washington, DC.
Federal Communications Commission.
Final rule.
In this document, the Commission revises its Schedule of Regulatory Fees to recover $381,950,000 that Congress has required the Commission to collect for its fiscal year (FY) 2022. Sections 9 and 9A of the Communications Act of 1934, as amended (Act or Communications Act), provides for the annual assessment and collection of regulatory fees by the Commission.
Effective September 14, 2022. To avoid penalties and interest, regulatory fees should be paid by the due date of September 28, 2022.
Roland Helvajian, Office of Managing Director at (202) 418-0444.
This is a summary of the Commission's Report and Order, FCC 22-68, MD Docket No. 22-223 and MD Docket No. 22-301, adopted on September 1, 2022 and released on September 2, 2022. The full text of this document is available for public inspection by downloading the text from the Commission's website at
1. As required by the Regulatory Flexibility Act of 1980, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Report and Order. The FRFA is located at the end of this document.
2. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
2. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that these rules are non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
3. Each year, the Commission must adopt a schedule of regulatory fees to be collected by the end of September. FY 2022, the Commission is required to collect $381,950,000 in regulatory fees, pursuant to sections 9 and 9A of the Communications Act, and the Commission's FY 2022 Appropriations Act. In this Report and Order, the we adopt the regulatory fee schedule, as set forth in Tables 4 and 5 for FY 2022, to collect $381,950,000 in regulatory fees as required by Congress.
4. We will continue to apportion regulatory fees across fee categories based on the number of non-auction direct FTEs in each core bureau (
5. NAB and the Joint Broadcasters question our methodology and argue that the Commission assigns a disproportionate share of the costs of the 343 indirect FTEs to the Media Bureau without any analysis performed as to what portion of those indirect FTEs actually work on Media Bureau issues. Specifically, the Joint Broadcasters argue that Media Bureau regulatees' regulatory fees are inflated in order to cover costs for staff time not spent on broadcast-related issues. The Joint Broadcasters contend that the proportional allocation methodology, whereby regulatory fees are allocated based on the number of direct FTEs in the core bureaus, leads to fundamentally unfair results and that broadcasters subsidize the costs of the Commission's indirect bureaus and offices.
6. These commenters fail to recognize the fundamental task assigned to the Commission. The Commission must recover the full S&E appropriation through an offsetting collection. The S&E appropriation does not solely fund staff time spent directly regulating regulatory fee payors. The S&E appropriation funds
7. The State Broadcasters Associations contend that it is likely that throughout the Commission there are identifiable groups of indirect FTEs working in non-core bureaus and offices, or collaboratively across bureaus and offices, whose work in oversight and regulation can be identifiably shown to only benefit some but not all regulatory fee payors. Accordingly, the State Broadcasters Associations argue that such indirect FTEs, whether handling Universal Service Fund or broadband internet access service issues, should be excluded from the indirect FTEs proportionally allocated to media services categories. Thus, the State Broadcasters Associations propose creating a third regulatory fee category, which they label as “Intersectional FTE.” They propose that this third regulatory category cover FTEs in the non-core bureaus and those in core bureaus who work on similar issues regulated by various bureaus but benefit a discrete group of regulatees. The State Broadcasters Associations argue that the work of indirect FTEs working on long-standing priorities of the Commission, such as Universal Service Fund program issues and broadband internet access service, unfairly burdens regulatory fee payors who do not benefit from these programs yet are required to pay regulatory fees that cover a proportion of such indirect FTEs. Essentially, the State Broadcasters Associations are of the opinion that there are some indirect FTEs who do not work on broadcast issues, and therefore broadcasters should not be assessed regulatory fees that include such indirect FTEs,
8. Additionally, the Satellite Coalition claims that regulatory fees are especially burdensome for the satellite industry, as some satellite companies pay millions of dollars per year solely to cover indirect FTE costs. The Satellite Coalition contends that by undertaking a reassessment of whether FTEs currently classified as indirect can be assigned directly to one or more categories of fee payors, the Commission can greatly improve the fee structure's fairness. Similarly, NAB contends that our regulatory fee methodology and allocation of indirect FTEs results in a system that is arbitrary and capricious, inequitable, and unlawful.
9. Again, we note that the regulatory fees must cover the entire appropriation, including those FTEs who may work on issues for which we do not have regulatory fee categories. We therefore continue to find that, consistent with section 9 of the Act, regulatory fees are not based on a precise allocation of specific employees with certain work assignments each year and instead are based on a higher-level approach. As the Commission has explained previously, indirect FTE time covers a wide range of issues; the variety of issues handled by the indirect FTEs in non-core bureaus may also include services that are not specifically correlated with one core bureau, let alone one specific category of regulatees. Indirect FTE work also includes matters that are not specific to any regulatory fee category, and many Commission attorneys, engineers, analysts, and other staff work on a variety of issues during a single fiscal year. For example, indirect FTEs that devote time to broadband internet access services or Universal Service Fund issues may also work on a variety of other issues during the fiscal year. Thus, we affirm the longstanding holding that the non-auctions work of certain bureaus and offices within the Commission are properly designated as indirect. Even if we could calculate indirect FTE time assignments at a granular level with accuracy, using any particular window of time less than the full year would not be accurate for the entire fiscal year. Moreover, we note that basing regulatory fees on specific assignments, instead of overall FTE time, would result in significant unplanned shifts in regulatory fees as assignments change over time.
10. Further, much of the work that could be assigned to a single category of regulatees is likely to be interspersed with the work that FTEs do on behalf of many entities that do not pay regulatory fees,
11. Additionally, we find that even if the State Broadcasters Associations' proposal were consistent with section 9 of the Act, it would not be administrable given the resources it would take to calculate and the resulting constantly shifting nature of the regulatory fee burdens. The State Broadcasters Associations' proposal would require resources of both staff and presumably information technology devoted to this proposed new system. Additionally, it would require a close monitoring and analysis of all the work of all indirect FTEs in the Commission over the course of the entire year. As NCTA states, “the idea that the Commission should undertake an analysis of hundreds of employees' daily undertakings, monitoring them and changing their indirect allocation to different fee categories as the employees receive new assignments and work on different issues throughout the day is nonsensical.” Thus, we do not believe that added granularity would change the overall result, or improve our regulatory fee methodology, but would simply consume more staff resources and increase the indirect FTE time devoted to regulatory fee administration. Even if we could conduct such a monitoring accurately, it would still be unable to account for the vast majority of indirect FTE time that cannot be allocated specifically to regulatory fee categories. This proposal would result in attributing some indirect FTE time to various regulatory fee categories in a manner that would fluctuate constantly, depending on the work done in bureaus and offices during the year, and others that could not be so attributed at all. We are not adopting a regulatory fee methodology that would result in dramatic swings in fees from one year to the next; instead we take a higher level approach for consistency as well as administrability. Our approach is most accurate when we look at the work of a larger group such as a division, office, or bureau, consistent with the language of section 9 of the Act that “fees reflect the full-time equivalent number of employees within the bureaus and offices of the Commission.”
12. NAB argues that the Media Bureau regulatees have a high regulatory fee burden because, unlike other core bureaus, the Commission has not reclassified any Media Bureau FTEs as indirect. This is inaccurate. In FY 2019, we had such reclassifications from core bureaus, including the Media Bureau. The Commission reassigned staff from other bureaus and offices to the new Office of Economics and Analytics, effective December 11, 2018. This resulted in the reassignment of 95 FTEs (of which 64 were not auctions-funded) as indirect FTEs because all FTEs in the Office of Economics and Analytics are indirect. The Commission also reassigned Equal Employment Opportunity enforcement staff from the Media Bureau to the Enforcement Bureau, effective March 15, 2019, resulting in a reduction of seven direct FTEs in the Media Bureau. These reassignments resulted in a reduction in direct FTEs in the Wireline Competition Bureau (from 123 FTEs to 100.8 FTEs), Wireless Telecommunications Bureau (from 89 FTEs to 80.5 FTEs), and Media Bureau (from 131 FTEs to 115.1 FTEs).
13. NAB also argues that the Commission should ensure that broadcasters bear no responsibility for the 84 direct FTEs in the Media Bureau that the Commission has stated to Congress are working to promote a 100% broadband policy, and that these 84 Media Bureau FTEs should be reclassified as indirect. The statement to Congress to which NAB refers is the description of the Commission's Strategic Goals and the distribution of FTEs for each Strategic Goal. The goal NAB refers to is the Commission's Strategic Goal to “Pursue a “100 Percent” Broadband Policy.” The other goals are to Promote Diversity, Equity, Inclusion, and Accessibility; Empower Consumers; Enhance Public Safety and National Security; Advance America's Global Competitiveness; and Foster Operational Excellence. The Commission, like every other federal agency, adopts strategic goals as part of its long term planning process pursuant to federal financial management requirements. The financial reporting statutes also require agencies to identify the resources that support such strategic goals. The strategic goals are not aligned with a particular regulatory fee category and the exercise is guided by a wholly distinct statutory scheme. In addition, such strategic goals are intended to align with higher level priority goals of the overall federal government. As such, a notation that staff support a specific strategic goal is not a sound rationale for reassigning staff from direct to indirect or vice versa. We therefore reject NAB's contention that planning documents guided by a wholly different statutory scheme form the basis to reassign most or all of the Media Bureau FTEs as indirect.
14. Thus, we decline, at this time, to change the methodology by which we allocate FTEs. Currently, there are 943 indirect FTEs. The indirect FTEs are the FTEs in the Enforcement Bureau (187), Consumer and Governmental Affairs Bureau (111), Public Safety and Homeland Security Bureau (98), Chairwoman's and Commissioners' offices (22), Office of the Managing Director (136), Office of General Counsel (70), Office of the Inspector General (47), Office of Communications Business Opportunities (10), Office of Engineering and Technology (66), Office of Legislative Affairs (8), Office of Workplace Diversity (4), Office of Media Relations (12), Office of Economics and Analytics (78), and Office of Administrative Law Judges (4), along with some FTEs in the Wireline Competition Bureau (38) and the International Bureau (52) that the Commission has previously classified as indirect for regulatory fee purposes.
15. The number of direct FTEs are determined within each core bureau and a percentage of the total amount to be collected in regulatory fees for a given fiscal year is calculated. There are 329 direct FTEs: $32.70 million (8.56% of the total FTE allocation, 28 direct FTEs) in fees from International Bureau regulatees; $81.74 million (21.40% of the total FTE allocation, 70 direct FTEs) in fees from Wireless Telecommunications Bureau regulatees; $129.62 million (33.94% of the total FTE allocation, 111 direct FTEs) from Wireline Competition Bureau regulatees; and $137.89 million (36.10% of the total FTE allocation, 120 direct FTEs) from Media Bureau regulatees. The regulatory fees we adopt here are based on the established methodology, applied to the allocated FTEs, and based on the Commission's appropriation amount of $381,950,000.
16. We adopt fee rates for NGSO space stations for FY 2022 and decline to create additional regulatory fee categories for FY 2022. In the Report and Order attached to the
17.
18. In the Report and Order attached to the
19. The Satellite Coalition first claims that the “Commission no longer can assume that EESS systems are less complex because they communicate with fewer than 20 U.S. earth stations.” The Satellite Coalition contends that distinguishing “less complex” and “other” NGSOs based on the number of earth stations is no longer accurate because two of the best-known EESS systems, Spire Global and Planet Labs, already communicate with more than 20 FCC-licensed antennas. The Satellite Coalition also observes that EESS systems are developing substitutes for dedicated, proprietary earth station networks, with some EESS systems relaying data via satellite systems that have established ground infrastructure, others associating with “ground station-as-a-service” organizations, and others downlinking data directly to user terminals, including more ubiquitous mobile terminals. The Satellite Coalition contends that the Commission should require licensees of EESS systems to report the total number of FCC-licensed antennas with which their systems communicate.
20. The EESS Coalition disagrees with the Satellite Coalition and argues that in the year since the Commission's 2021 decision there are “no new arguments or developments” that warrant the alterations to the NGSO fee categories sought by the Satellite Coalition. The EESS Coalition further argues that considerations regarding the number of earth stations as a proxy for the complexity of a system have not altered. The EESS Coalition contends that, under our rules, an “earth station” could not be defined as a single antenna. The EESS Coalition further disagrees that the fee allocation needs to be altered as EESS systems may begin to require more earth stations to meet demand because the Commission previously clarified that systems planning to communicate with greater than 20 earth stations would not meet the definition of “less complex.” Likewise, the EESS Coalition contends that the fact that EESS systems have been improving their technology is not a reason to change the fee allocation when the Satellite Coalition provides no explanation of how or why the introduction of new use cases that are not directly regulated by the Commission, or the use of third-party ground stations, support the conclusion that there are additional burdens on the Commission's responsibilities.
21. As an initial matter, we emphasize that we previously concluded that 20 or fewer planned earth stations is an accurate proxy to determine whether a primarily AIS and/or EESS system is “less complex” and that EESS systems are less burdensome to regulate than other types of services, such as NGSO FSS systems, when those EESS systems plan to communicate with 20 or fewer earth stations. We will address the Satellite Coalition's comments to the extent that it raises new arguments.
22. We find that distinguishing “less complex” EESS systems based on whether those systems plan to communicate with 20 or fewer earth stations is still an accurate proxy. The Satellite Coalition argues that the Commission meant to define earth stations as antennas. Notwithstanding the assertions of the Satellite Coalition, a single call sign, not an antenna, equates to a single earth station license. The Commission's definition of “earth station,” which incorporates the Commission's definition of “station,” demonstrates that an antenna is merely part of an “earth station.” A “station” includes “[o]ne or more transmitters or receivers or a combination of transmitters and receivers, including the accessory equipment, necessary at one location for carrying on a radiocommunication service[.]” While an antenna may be an important piece of equipment in transmitting or receiving signals, additional accessories are needed to successfully carry out a radiocommunication, which, together with one or more antennas, constitute a “station.” Moreover, it is not apparent how the number of antennas at a particular earth station location supports a conclusion that there are additional burdens on the Commission's responsibilities for regulatory fee purposes.
23. In addition, we disagree that we should change the 20/80 allocation now because EESS systems are developing substitutes for dedicated, proprietary earth station networks. While in the future this may result in our reconsideration of planned 20 earth stations as the dividing line between a “less complex” and “other” system, for FY 2022, we agree with the EESS Coalition that we do not have evidence that “less complex” systems' new technology has made those NGSO systems more burdensome to regulate. Based on our current experience, the 20/80 split continues to be accurate and closely reflect the percentage of the FTE time spent to regulate less complex NGSO space stations and “other” NGSO space stations.
24. Finally, we remind all operators that the fee payors have an obligation to pay the correct fee amount corresponding to their actual fee category. If a non-small satellite NGSO system is listed as “less complex” but actually communicates with more than 20 earth stations, such fee payor has an obligation to correct that listing mistake to be billed the fee amount that correspond to “other” NGSO space station fee category. In the
25. Second, the Satellite Coalition also argues that the characteristics that the Commission previously noted that make EESS systems distinct from other NGSO systems, such as those NGSO systems providing fixed-satellite service (FSS), are breaking down. The Satellite Coalition asserts that EESS systems now are developing a global presence and have significant spectrum needs and use multiple bands, while the significance of processing rounds has been diminished. The Satellite Coalition contends that the Commission should not be assessing radically different regulatory fees for NGSO systems that are becoming functionally indistinct and competing for the same or similar customers.
26. The EESS Coalition counters that many of the developments to EESS systems to which the Satellite Coalition cites took place prior to the FY 2021 regulatory fee proceeding during which
27. Third, the Satellite Coalition argues that adoption of a fee category for small satellites should result in a re-evaluation of the regulatory fees between “less complex” systems and “other” NGSO systems. The Satellite Coalition argues that, because Commission resources devoted to the regulation and oversight of “small satellites” is minimal, “small satellites” are the least complex NGSO systems among the types of constellations that formerly were included in the “less complex” NGSO fee category, and now that “small satellites” have their own fee category, only systems that demand relatively more Commission oversight remain in the “less complex” fee category for FY 2022 and going forward. The EESS Coalition disagrees because the Commission previously “note[d] that while there may be overlap in the types of services being provided in some instances, there are also important differences between small satellites and `less complex' and `other' NGSO space station systems.”
28. We decline to reconsider the “less complex” fee allocation due to the adoption of a small satellite fee category. A new regulatory fee category was created for small satellites in 2019. The 20/80 fee allocation among “less complex” NGSO systems and “other” NGSO systems was not proposed until 2021. As a result, parties had notice that small satellites would be assessed fees separately when we accepted comments regarding the 20/80 NGSO fee allocation. Even when we adopted the 20/80 NGSO fee allocation, we left open the question as to how we would integrate the small satellite fee category into the overall space stations fee category rather than guaranteeing that the fee would be integrated into the “less complex” NGSO fee category. We also did not yet have any operational small satellites that were assessed fees in FY 2021, so small satellite licenses were not factored into the “less complex” allocation. As such, we see no need to reconsider the 20/80 allocation following integration of the small satellite fee category into the overall NGSO space station fee category at this time.
29.
30. We are assessing regulatory fees for small satellites for the first time in FY 2022 because there were five licenses for operational space stations in this small satellite regulatory fee category as of the start of the fiscal year on October 1, 2021. We are using the methodology adopted in the Report and Order attached to the
31. OSK requests that we broaden the definition of “small satellites” for the purposes of regulatory fee assessment to include all systems that meet the criteria enumerated in the
32. SIA responds that OSK's proposal should be rejected because it would require the Commission to individually determine whether every satellite system that applies for Commission authorization meets the criteria enumerated in the
33. We decline to broaden the definition of “small satellites” for the purposes of regulatory fee assessment and conclude that only space stations licensed pursuant to the streamlined small satellite licensing process under sections 25.122 and 25.123 of our rules are eligible to be assessed the small satellite regulatory fee. As we noted in the
34.
35. Due to the nature of the OOS and RPO, or more generally in-space servicing industries, we will continue to evaluate each such spacecraft on a case-by-case basis until we gain more experience in understanding how such spacecraft fit into our regulatory structure. In the
36. SIA supports our earlier conclusion that it is premature to adopt new fee categories for OOS and RPO, as there is currently too much variation in the industry, and such operations continue to require a case-by-case review. SIA also notes that even Astroscale, which supports a fee for RPO operations, acknowledges that such operations are part of a “nascent infrastructure.”
37. Other commenters favor the creation of a new fee category and propose how we may define the services that may be contained in this new category. Spaceflight argues that OOS missions are a new industry sector involving relatively low-cost systems and a high regulatory fee could limit the commercial applications for such systems. Spaceflight states that OOS might support NGSO or GSO satellites and should be their own category. Spaceflight observes that until recently the fact that these missions have been authorized under Special Temporary Authority (STA) has made Commission regulatory fees a non-issue, but now that the Commission is requiring some of these missions to be licensed under part 25, the issue of the appropriate regulatory fees must be decided. Spaceflight also recommends that the Commission define “OOS Missions” as spacecraft whose primary function is to provide OOS, including concepts of operations such as deployment via orbital transfer vehicle (OTV), hosting, or RPO. Turion adds that the proposed OOS regulatory fee category should include space situational awareness (SSA) and space domain awareness (SDA) and, in the absence of an OOS regulatory fee category, SSA and SDA should fall under a new regulatory fee category, separate from the standard NGSO fee category. Astroscale requests that, rather than using the terms OOS and RPO when discussing the creation of a new fee category, we use the term “in-space servicing” to correlate the language with the In-Space Servicing, Assembly, and Manufacturing (ISAM) National Strategy. Astroscale suggests “in-space servicing” be defined as activities in space “by a servicer spacecraft or servicing agent on a client space object which require rendezvous and/or proximity operations.” Astroscale also contends that the Commission must not continue to regulate in-space servicing systems on a mission-by-mission basis and notes that three distinct ISAM operators have multiple granted or pending full part 25 licenses and 15 STAs have been granted to support commercial ISAM activities since 2016. Astroscale adds that a fee category for in-space servicing is needed to solve existing ambiguity and because ISAM operations challenge the current fee structure established by orbital regime since an in-space servicing spacecraft can change between NGSO and GSO operations over their servicing lifetime.
38. Two commenters support an interim regulatory fee at the same amount as the small satellite fee. Spaceflight and Turion observe that many of the factors used in determining the small satellite regulatory fee, such as interference protection, limited duration, smaller investment, less
39. We are unable to adopt a new regulatory fee for in-space servicing operations for FY 2022 now, as we are required to notify Congress at least 90 days prior to creating such a change to the regulatory fee schedule. Moreover, even absent the notice requirement, we find that the record is not sufficient to support such action at this time. As such, we defer this issue to a future fiscal so that we can more effectively address this issue once the regulatory framework under which space stations performing in-space servicing operations, including OOS, RPO, SSA, and SDA operations, and the scope of those operations, is better understood. As SIA, Spaceflight, and Astroscale acknowledge, in-space servicing is a relatively new industry. Missions, which can include satellite refueling, inspecting and repairing in-orbit spacecraft, capturing and removing debris, and transforming materials through manufacturing while in space, have the potential to benefit all space stations, the sustainability of the outer space environment and the space-based services. We note that these systems are still nascent. For FY 2022, only two in-space servicing spacecraft were operating pursuant to full part 25 licenses, which is a marginal number in comparison to the total number of systems operating pursuant to full part 25 licenses that we are regulating during this fiscal year. We need more experience with these operations and in understanding the FTE time required to support them. At this time, we do not have the experience or the robust record needed to establish definitions and methodologies for a new fee category for these operations that would fairly recover any costs that might be associated with such services. For the same reasons, we decline to adopt an interim fee, including one equivalent to the fee assessed for systems authorized under the streamlined small satellite licensing process. As we gain more experience in oversight and regulation of this industry, we will better understand how to recover any regulatory costs and benefits that might be associated with these operations. We also expect to gain more insight into this industry through the record associated with our Notice of Inquiry regarding commercial and other non-governmental ISAM activities.
40. We reject the Submarine Cable Coalition's request to revise the Commission's regulatory fee methodology for submarine cable operators, which is based upon the lit capacity of the fiber-optic submarine cable. We find that the Submarine Cable Coalition provides no persuasive argument that the Commission's assessment of these regulatory fees based on capacity is contrary to the Communications Act and is not reasonably related to the benefits provided. In the 2009
41. The Submarine Cable Coalition reiterates in this proceeding the arguments rejected by the Commission in the FY 2020 and FY 2021 proceedings. The Submarine Cable Coalition contends that the “regulatory fee structure based upon cable system capacity is contrary to the mandate of the Communications Act, is overly burdensome, and is disconnected from the Commission's responsibilities for regulatory oversight of the submarine cable industry.” The Submarine Cable Coalition argues that our methodology “fails to take into consideration that the size of a system is not tied to the number of customers, nor the amount of revenue that it will generate.” According to the Submarine Cable Coalition, “[t]he location of the system, the existence of competing systems, market demands, whether the system is operated on a private basis, and various [other] system specific factors [make] the assessment of the claimed `benefits' by the Commission a highly nuanced and fact-specific endeavor.” The Submarine Cable Coalition further contends that “the Commission must continue to lower the burden on the submarine cable operators” and “[t]his continued large increase on the top end of the scale remains unjustified as the amount of regulatory work that is undertaken by the Commission regarding submarine cable regulatees is fixed—the procedures do not vary by the potential traffic the cable is able to carry, nor has that level of regulatory work increased by any significant metric in the preceding period.” Lumen, on the other hand, states that “capacity is a reasonable way to distinguish those submarine cable providers who benefit more from the Commission's activities from those who benefit less.” Lumen agrees that the fees for IBCs as a group, which includes submarine cable systems, should be reduced, but supports the Commission's longstanding practice of assessing fees based on capacity.
42. We disagree with the Submarine Cable Coalition's contention that the Commission's regulatory fee methodology is contrary to the
43. Since FY 2009, when the Commission adopted the new methodology for assessing submarine cable fees, the level of lit capacity for submarine cable systems has increased and the Commission has expanded the different tiers to take into account this change and accommodate for this rapid growth in capacity. However, the basic methodology for calculating submarine cable fees based on capacity has not changed. Submarine cable fees are still calculated on the basis of “1” unit, “.5” units, “.25” units and so forth. Furthermore, we note that the regulatory fees for FY 2022 have been reduced from those assessed in FY 2021; the assessment per unit is now $137,715 compared to $151,910 in FY 2021. As discussed above, lit capacity remains a reasonable basis to apportion regulatory costs among the submarine cable regulatees that benefit from the Commission's work, and our fee methodology with respect to submarine cables continues to reasonably reflect the FTE costs for our regulatory activity concerning submarine cables as well as the services provided over the submarine cables. Accordingly, for FY 2022, we adopt the regulatory fees below for submarine cable systems.
44.
45. In the
46. NAB argues that the Commission should continue to exempt broadcasters from paying for the Commission's ongoing broadband data mapping work. In FY 2022, however, Congress
47. Commenters argue that broadcasters' regulatory fees have increased by approximately 13% from FY 2021 to FY 2022 with no explanation for such an increase by the Commission. This proposed increase of 12%-13% between FY 2021 and FY 2022 regulatory fee rates was due to the reduction in regulatory fee rates for broadcasters (AM, FM, TV, LPTV) due to the Broadband DATA Act earmark in FY 2021. As discussed below, however, these figures are no longer accurate due to a correction to our allocation of direct FTEs that were previously reassigned as indirect in 2017. That said, as we explained above, because the amount the Commission must collect in an offsetting collection changes each year, regulatory fees will typically change each year as a mathematical consequence of the change in amount to be collected in the current year, FTE allocations in the core bureaus, and projected unit estimates. Thus, any regulatory fee increases may not necessarily correlate to the Commission's overall increase in its appropriation for a fiscal year.
48. The NJBA contends that we should consider an across-the-board reduction of all fees for broadcasters given the “emerging technologies and the eloquent simplicity of regulating [the broadcast] industry, along with broadcasters' longstanding special place in the fabric of American society.” Specifically, the NJBA states that the broadcast industry has largely been governed by the market and enjoys a prolific and symbiotic relationship with the public and, unlike the other technologies competing for Commission resources, broadcasters do not charge their audiences ever-increasing user charges, subscription rates and fees for the services they provide. Commenters add that broadcasters have been particularly hard hit by the COVID-19 pandemic, with severe reductions in advertisement revenues. Similarly, NAB explains that broadcasters do not have a subscriber base to whom they can pass on costs and they are required to provide a free service to the public and are dependent on advertising revenues to cover their costs.
49. We recognize that many entities, including broadcasters, sustained economic losses during the COVID-19 pandemic. We also recognize the broadcasters do not have a subscriber base to whom they can pass through regulatory fees. However, we emphasize that we must collect the full FY 2022 appropriation and cannot exempt regulatees from regulatory fees unless they are expressly exempted under the statute. As CTIA observes, pursuant to section 9 of the Act, regulatory fees are based on the level of Commission staffing or staff activity undertaken by the relevant core bureaus; neither Commission policy objectives nor regulatee success in the marketplace are relevant factors in calculating regulatory fees and fulfilling the statutory charge of section 9 of the Act. Thus, we cannot reduce FY 2022 fees across-the-board for one category of fee payor; we cannot re-apportion the fees among categories based on, for example, relative ability to pay, and we cannot exempt regulatees based on their financial circumstances. As we indicated above, regulatory fees are a zero-sum situation. If the Commission freezes one set of regulatees' fees, it will need to increase another set of regulatees' fees to make up for any resulting shortfall, and in doing so, the Commission would be failing to base regulatory fees on FTEs as statutorily required. We therefore decline to make such changes, requested by NAB and others, based on policy considerations inconsistent with section 9 of the Act.
50.
51. The Commission previously discussed the treatment of VHF stations. Specifically, the Commission observed that, in the
52.
53. NJBA disagrees with this methodology and contends that a population-based fee approach to assign regulatory fees is incongruent with how a station should be assessed fees in correlation to the revenue it achieves from its Nielsen DMA revenue share. NJBA argues that the DMA approach is a more accurate approach to assessing fees correlating with how stations derive revenue. NJBA's argument is that its members had relatively low revenues compared to major network stations in New York City. Essentially, NJBA appears to seek a waiver for its members of a portion of the regulatory fee based on its individual financial circumstances,
54. NJBA also notes that the term Noise Limited Contour (NLSC) implies that it is the contour within which a perfect picture would appear at each television receiver. NJBA contends that this approach does not consider the effects on a signal that may result from the distance it may travel; the effects of terrain; building blockages which often occur in major city settings; and interference levels from co-channel and adjacent channel signals. NJBA's argument is that certain stations experience a high degree of interference from environmental noise and signal blockage from tall buildings near its transmitter. We recognize that in various parts of the country, broadcasters may face such interference or signal blockage issues; however, as we discussed in the
55. We decline to increase the de minimis threshold amount above $1,000. Section 9(e)(2) of the Act permits the Commission to exempt a party from paying regulatory fees if “in the judgment of the Commission, the cost of collecting a regulatory fee established under this section from a party would exceed the amount collected from such party.” A regulatee's de minimis status is not a permanent exemption from regulatory fees. Rather, each regulatee will need to reevaluate annually to determine whether its total liability for annual regulatory fees falls at or below the de minimis threshold given any changes that the Commission may make in its regulatory fees each fiscal year. As we explained in the
56. For FY 2019, the last year the Commission reviewed the de minimis threshold, the Commission concluded that its average cost of collection did not exceed $1,000 and, therefore, the $1,000 de minimis threshold was still appropriate. In the
57. NAB, SIA, and the State Broadcasters Associations support a review of the $1,000 de minimis threshold. SIA suggests that, in light of inflation and other economic changes since 2019 when the Commission last addressed the de minimis threshold, the Commission's cost of collecting regulatory fees may have increased. NAB and the State Broadcasters Associations support expanding the Commission's calculation of its regulatory fee collection costs to include the cost of collecting payor fee data, costs incurred prior to the regulatory fee due date and the cost of processing and resolving waiver and installment payment requests. Specifically, NAB, SIA, and Richards each suggest that an appropriate factor in setting the de minimis threshold is to provide a higher threshold of relief to smaller broadcasters. To that end, NAB proposes that the de minimis threshold be increased to $1,200 to ensure that radio broadcasters that were below the de minimis threshold last year, but facing higher FY 2022 regulatory fees, will still be exempt in FY 2022. Richards suggests increasing the de minimis threshold to $3,000 in order to exempt most AM and FM stations serving populations under 500,000, which are the stations Richards believes will be hardest hit by the increase in FY 2022 regulatory fees.
58. We acknowledge that the de minimis threshold has the collateral effect of providing financial relief to some regulatees. However, it does not follow from the wording of section 9(e)(2) of the Act that providing relief for financially strapped regulatees is a factor that can be considered in setting this threshold. Moreover, raising the threshold on such a basis would result in exempting classes or categories of fee payors in a manner contrary to the limited waiver provisions for regulatory fees. Nothing in the text of the statute supports using policy factors outside of the cost of collection in establishing the de minimis threshold. Thus, in response to commenters' request for a review of the de minimis threshold, we calculated the average cost of collecting FY 2021 regulatory fees and included the cost of collecting payor fee data and the cost of
59. Both NAB and the State Broadcasters Associations suggest that the Commission define the “cost of collection” to encompass all annual costs of administering the regulatory fee program. While we agree with NAB that section 9(e)(2) of the Act does not provide a definition of costs of collection, we do not agree that the cost of collecting a regulatory fee should be expanded to include all of the Commission's costs of administering the regulatory fee program each year. We believe that a common sense interpretation of the language of section 9(e)(2) of the Act includes only those costs incurred by the Commission once the Commission has established that the annual fees are owed, which occurs when the Commission's regulatory fee Report and Order is released. In making this determination, we rely in part on the Debt Collection Improvement Act of 1996, as amended, 31 U.S.C. 3701
60.
61. Initially, Universal Service Fund programs were focused on wireline services; however, as the Commission observed, by 2017, wireless carriers and broadband providers were also involved in the E-Rate, Lifeline, and Rural Healthcare programs. In addition, the E-Rate, Lifeline, and Rural Healthcare programs tie funding eligibility to the beneficiary,
62. NAB contends that this reclassification of 38 FTEs is a wholesale abandonment of the statutory requirement that fees be adjusted to reflect benefits received by the payor by the Commission's activities. According to NAB, broadcasters have been unfairly forced to pay for a portion of the 38 FTEs in the Wireline Competition Bureau that the Commission determined were working on Universal Service Fund programs. NAB claims that, at a minimum, the Commission must ensure that broadcasters bear no responsibility for the 38 FTEs working on non-high cost USF programs in the Wireline Competition Bureau. NAB further argues that over the last five years broadcasters have likely paid more than $25 million in regulatory fees to support the activities of FTEs that, according to NAB, the Commission agrees do not benefit or regulate broadcasters.
63. We disagree that this example of 38 indirect FTEs who work on non-high cost Universal Service Fund issues was an improper assignment of FTEs under section 9 of the Act. Indirect FTEs work on issues that may include more than one regulated service or work on matters that are not related to services regulated by the Commission. All costs that are not directly related to regulation and oversight by the core bureaus must also be recovered by regulatory fees. This includes salaries and expenses, overhead functions, statutorily required tasks that do not directly equate with oversight and regulation of a particular regulatee but instead benefit the Commission and the industry as a whole, support costs such as rent, utilities, and equipment, and the costs incurred in regulating entities that are statutorily exempt from paying regulatory fees (
64. With that said, while we continue to find that the Commission was supported in its decision in 2017 to reassign the 38 FTEs in the Wireline
65. Therefore, we will exclude “Media Services” licensees from recovery of the funds associated with the 38 indirect FTEs who work on non-high cost Universal Service Fund issues. We find that this correction to the manner in which we apportion the 38 previously reallocated core bureau FTEs is supported given the nature of this FTE reassignment; the weight of the record with respect to this issue; and the unusual position of broadcasters vis-à-vis other Commission regulatees in this instance. Furthermore, once implemented, this correction is easily repeatable each year, so long as the FTE reassignment remains warranted. In excluding “Media Services” licensees from the recovery of the funds associated with the 38 indirect FTEs who work on non-high cost Universal Service Fund issues, we recognize that all other fee payors within the core bureaus, including cable, DBS and IPTV providers regulated by the Media Bureau, will need to absorb these indirect costs because we are required by Congress to collection the full annual appropriation.
66.
67. SIA also contends that a large portion of the FTE time in OEA involves auctions and is therefore outside the scope of International Bureau payors and International Bureau regulatees should not be responsible for this portion of indirect FTEs. As we have previously stated, all auctions expenses are separately funded and are not part of the Commission's annual S&E appropriation supported by regulatory fees. Pursuant to statute, the Commission recovers the costs of developing, implementing, and maintaining its section 309(j) spectrum auctions program as an offsetting collection against auction proceeds and subject to an annual cap which is articulated in the annual S&E appropriation. Thus, time devoted to developing and implementing auctions is tracked separately from other non-auctions work performed by FTEs, and is offset by the auction proceeds that the Commission is permitted to retain pursuant to section 309(j)(8) of the Act and the Commission's annual appropriation statute. For this reason, auctions FTEs are not included in the calculation of regulatory fees, and the Commission's methodology excludes all auctions-related FTEs and their overhead from the regulatory fee calculations. To the extent that FTE time within core bureaus is spent on auctions issues and on non-auctions issues, only the non-auctions portion is reflected in the core bureau's FTE count. Thus, only direct non-auctions FTE time is used in the calculation of the regulatory fee rate and consequently impact the overall regulatory fee calculations.
68. Further, SIA suggests that the Commission allocate the indirect FTEs in OEA's Auction Division to regulatory fee payors who benefit from auctions; and classify OEA's Associate Chief, Wireline, and Associate Chief, Media as direct FTEs allocated to Media and Wireline, respectively, and then divide the Associate Chief, Wireless and Spectrum indirect FTEs among the remaining core licensing bureaus. We reject this proposal. As an initial matter, we note that an FTE is a full-time equivalent, not an employee, and is based on the hours of work devoted to the regulation and oversight of the fee categories and not a particular job title. Further, the FTE time working on auctions issues is not included in our regulatory fee calculations and is funded separately. The OEA FTEs numbers attributed to non-auctions work derive from FTE levels in the Data Division, Economic Analysis Division, and Industry Analysis Division, as well as in OEA's Front Office. Staff in OEA review all Commission-level items, from all the Commission's bureaus and offices, including the International
69. In the Notice of Proposed Rulemaking attached to the
70. The Satellite Coalition and SIA propose that the Commission adopt a regulatory fee category for holders of experimental licenses and state that this would involve the same process used for other licensed entities: the Commission would calculate the number of FTEs engaged in experimental licensing activities to determine the percentage of the total regulatory fee revenue requirement associated with experimental licensees (including direct and indirect costs) and then divide that amount among experimental license holders. CTIA disagrees and observes that the FTEs in the Office of Engineering and Technology (OET) that work on experimental licenses are appropriately classified as indirect because their duties affect multiple core bureaus and their regulatees, including satellite regulatees authorized by the International Bureau. We are not convinced that an experimental license is the same as other Commission licenses and that it should be subject to a regulatory fee.
71. OET typically grants over 2,000 experimental licenses each year, including Special Temporary Authority (STA). Many commercial services and technologies deployed today were first tested under the experimental licensing program. Where such technologies result in new licensing frameworks or services, the resultant services usually are subject to regulatory fees. The experimental radio service permits broad experimentation, including assessing equipment intended to operate in existing Commission services, proof of concept testing and evaluation of new radio technologies, equipment designs, radio wave propagation characteristics, and service concepts related to the use of the radio spectrum. Thus, many experimental licenses are filed by universities, research and development companies, technology manufacturers, and medical institutions which often are non-profit entities.
72. The Commission issues a variety of experimental licenses that range in duration from a few days to six months for STAs, generally two years for conventional experimental licenses, five years for experimental program licenses, and 10 years for experimental licenses in spectrum bands above 95 GHz. There is no renewal process for STAs. Further, applicants seeking extension of conventional experimental licenses must include sufficient justification for continued experimentation; otherwise, such applicants are referred to the appropriate service bureau to seek a service license. If service rules for the applicable spectrum are needed, applicants may petition the Commission for rulemaking to modify allocations or service rules in such a way as to permit the tested technology to obtain a license to operate. Experimental licenses (except for above 95 GHz licenses) are not permitted to be used to offer commercial service. However, market trials are permitted under certain circumstances to allow applicants to evaluate product performance and customer acceptability prior to the production stage. Further, experimental licenses are issued on a limited, non-harmful interference basis for operation within a band in which (typically) regulatory fee payors enjoy primary or secondary use. Additionally, experimental licenses do not provide the holder with any vested spectrum use rights and the Commission can require licensees to discontinue experimental operations at any time without undertaking any further administrative process, such as an adjudication.
73. OET's experimental authorization processes thus are distinct from authorization processes applicable to other types of licenses and the regulated entities holding them, and essentially fall under OET's functions of evaluating evolving technology for interference potential, facilitating the introduction of nascent technologies, and maintaining the U.S. Table of Frequency Allocations. As such, in reviewing those applications, OET ensures that experimental uses will not interfere with the primary and secondary users in the relevant bands, who, unlike experimental license holders, do have spectrum rights associated with a license in an authorized service. Where the core bureaus regulate the regulatory fee payors, they also provide the benefit of protecting such primary and secondary uses of the spectrum. Thus, while Commission resources are expended on processing experimental applications, these licenses are approved for a proposed experiment or range of experiments, and not for an actual operational service under established service rules providing some level of interference protection. Experimental licensing is often an important option for academic researchers on restricted budgets who are developing new technological solutions. Therefore, imposing regulatory fees on these licensees potentially could stifle a Commission function and policy objective of promoting new, efficient technology by precluding some academic researchers or small start-up technology developers from developing and testing new technologies and systems. Moreover, experimental authorizations present challenges in determining a fair, administrable, and sustainable regulatory fee system. As a starting point, many experimental license applicants are exempt from regulatory fees under the statute. Additionally, given the transient nature of such authorizations, determining what operational period is sufficient to merit assessment of regulatory fees would require significant analysis. Given the varying types of experimental authorizations, and the limited authority granted, it is likely we would have to consider multiple regulatory fee categories and multiple ways of allocating proportional fees to such categories. Commenters have not provided any analysis of the experimental authorizations in the record to allow us to make such determinations here. Moreover, in addition to the exempt status of many applicants, it is likely we would find
74. Further, as we stated previously, OET provides engineering and technical expertise to the Commission as a whole and supports each of the agency's four core bureaus. FTEs within OET are appropriately classified as indirect because the FTE time devoted to OET work affects multiple core bureaus within the Commission and its regulatees. Because the experimental license typically is not used for a commercial service, and OET oversight helps to ensure that experimental licensees do not interfere with other (non-experimental) licensees, “it is consistent with the principles of section 9 of the Communications Act for other (non-experimental) licensees to pay the costs of OET's work on experimental licenses. OET's FTE work on experimental licenses already is captured under the Commission's current regulatory fee framework. Moreover, we find that the Satellite Coalition's and SIA's proposals for such a new fee category could discourage communications industry innovation, and thus undermine the rationale for the Experimental Radio Service. We therefore decline to adopt a new regulatory fee category for holders of experimental licenses.
75. We also decline to create a new regulatory fee category for broadband internet access services at this time. There is no specific bureau or office in the Commission with oversight of all broadband services, because these oversight activities are spread out among all core bureaus, and broadband issues are a part of a variety of Commission initiatives and proceedings. NAB and Satellite Coalition argue that the Commission should expand the base of regulatory fee categories to include a broadband internet access service fee category to which the Commission should allocate all broadband-related costs.
76. Specifically, NAB contends that the Commission should revise its methodology to reallocate broadband costs among only those fee payors that benefit from the Commission's broadband activities. NAB argues that requiring broadcasters to pay for these costs is unfair since broadcasters do not benefit from the Commission's broadband activities. NAB suggests that the Commission modify its existing information collection systems to obtain the data necessary to assess regulatory fees on either a subscription or revenue basis. NAB contends that broadband internet access service providers began submitting data, including subscription counts, in the annual Broadband Data Collection and that the Commission could use this information to assess fees on a per-subscriber basis. NAB further proposes that we place this regulatory fee category within the Wireline Competition Bureau and reallocate FTEs that work primarily on broadband related issues in the other core and noncore bureaus and offices of the Commission to this fee category, to the extent necessary.
77. In the
78. Further, we are unconvinced that a broadband internet access service regulatory fee category is necessary or that such a category appropriately belongs in the Wireline Competition Bureau. Broadband internet access services are offered through various technical means and by widely differing entities and to distinct user groups,
79. The Satellite Coalition, in arguing that the Commission adopt a broadband internet access service regulatory fee category, contends that the Commission has already calculated that 550 FTEs across a wide variety of offices and bureaus work on the Commission's broadband policy as part of its Strategic Goal to bring affordable, high-speed broadband to 100% of the country. We do not agree with Satellite Coalition's contention that the 2022 Strategic Goals apply to assessing regulatory fees. The Commission's Strategic Goals do not pertain to any specific regulatory fee category, but rather are developed and used as part of planning exercises mandated by a wholly unrelated statutory scheme. As we indicated above, such strategic goals are intended to align with higher level priority goals of the overall federal government. Thus, staff support of a specific strategic goal is not a sound rationale for adopting a new regulatory fee category.
80. Additionally, NAB argues that broadening the base of regulatory fee payors to include broadband internet access service providers would ensure a more fair and sustainable regulatory fee system. However, NAB's proposal does not establish a sufficient basis for the creation of such a category and that a broadband internet access services regulatory fee category, if adopted, would be fair, administrable, or sustainable for the reasons elaborated above. As NCTA notes, the Commission has taken historic actions to discount broadband internet access service for those who cannot afford it and now would not be the time to unravel that work by adopting a new set of regulatory fees that would increase the cost-burden of these services. We also are not persuaded that such a new
81. We decline to adopt the Satellite Coalition's proposal that the Commission adopt a regulatory fee category for holders of equipment authorizations. Satellite Coalition argues that the costs associated with equipment authorizations can be assessed on equipment manufacturers that benefit from Commission staff who implement policies designed to ensure compliance with relevant regulatory standards. We find, however, that OET FTE time on equipment authorizations is appropriately classified as indirect because such work affects multiple core bureaus and their regulatees, including satellite regulatees authorized by the International Bureau. OET provides engineering and technical expertise to the Commission as a whole and supports each of the four core bureaus. Notably, part of OET's role is to participate in matters “not within the jurisdiction of any single bureau” or “affecting more than one bureau,” similar to other offices with indirect FTEs such as the Office of General Counsel and the Office of Economics and Analytics. Some of OET's duties and responsibilities that affect multiple core bureaus and their regulatees include maintaining the U.S. Table of Frequency Allocations; managing the Experimental Licensing and Equipment Authorization programs; regulating the operation of devices; and conducting engineering and technical studies. The matters handled by OET benefit the Commission's work as a whole as well as all service sectors to which the Commission's core bureaus devote FTE resources.
82. The equipment authorization program is one of the principal ways the Commission ensures that radio frequency devices operate effectively without causing harmful interference and otherwise comply with the Commission's rules. The Commission's equipment authorization program promotes efficient use of the radio spectrum and addresses various responsibilities associated with certain treaties and international regulations, while ensuring that radio frequency (RF) devices in the United States comply with the Commission's technical requirements before they can be marketed in or imported to the United States. As a general matter, for an RF device to be marketed or operated in the United States, it must have been authorized for use by the Commission, although a limited number of categories of RF equipment are exempt from this requirement. The Commission's equipment authorization program provides for two pathways: certification and supplier's declaration of conformity (SDoC). Applicants for equipment certification are required to file their applications, which must include certain specified information, with an FCC-recognized Telecommunications Certification Body (TCB). The Commission, through its Office of Engineering and Technology (OET), oversees the certification process, and provides guidance to applicants, TCBs, and test labs with regard to required testing and other information associated with certification procedures and processes, including guidance provided via correspondence or found in pre-approval guidance or OET's knowledge database system (KDB). The SDoC procedures, which are available for specific equipment generally considered to have reduced potential to cause RF interference, provide for equipment to be authorized based on the responsible party's self-declaration that the equipment complies with the pertinent Commission requirements. Because the SDoC process is based on self-declaration, there is no direct oversight of that process by OET staff. As we noted in the
83. Because there are multiple categories of equipment authorization procedures, including exemption and self-authorization, the implementation of regulatory fees assessed to holders of equipment authorizations presents challenges in determining a fair, administrable, and sustainable fee system.. Additionally, equipment authorization generally applies to the functionality of a particular device, not the production of each unit (
84. We also decline to adopt the Satellite Coalition's proposal that the Commission adopt a new regulatory fee category for database operators that charge fees to enable unlicensed use of certain frequency bands. The Satellite Coalition asserts that these operators benefit from Commission rulemakings that enable them to administer unlicensed use of spectrum, and thus, that they should contribute their share to the Commission's budget. It argues that pursuant to the RAY BAUM'S Act we are no longer limited to looking at FTEs in core bureaus when determining regulatory fees. The Wi-Fi Alliance disagrees and contends that the proposal to impose fees on operators of databases would impede use of 6 GHz spectrum, which in many cases will require access to an automated frequency coordination operator and its database.
85. As we have previously discussed, pursuant to section 9 of the Act,
86. Moreover, the suggestion that we create a regulatory fee category for only these database administrators ignores the fact that, under the Commission's rules, there are a variety of database administrators and spectrum coordinators (
87. Further, the Commission's FTE activities related to operators of databases of spectrum on an unlicensed basis benefit a wide variety of industry segments, both licensed and unlicensed, and is consistent with the treatment of these FTEs, which work primarily in the Office of Engineering and Technology, as indirect. Thus, we do not find that there are sufficient benefits (
88. We decline to adopt NAB's proposal to adopt a new regulatory fee category for users of spectrum on an unlicensed basis, including large technology companies. Commenters generally oppose NAB's proposal. The Wi-Fi Alliance states that there is no basis for creating a new fee category to include, directly or indirectly, users of spectrum on an unlicensed basis, and doing so would not be fair, administrable, or sustainable. Other commenters also oppose the proposal to adopt a regulatory fee category for the use of spectrum on an unlicensed basis. NCTA observes that no commenter has even clarified who they think falls into the fee category, let alone presented any type of proposal or detailed explanation of how the Commission might assess such fees.
89. NAB has not provided a sufficient basis, consistent with section 9 of the Act, for the adoption of a new regulatory fee category for users of spectrum on an unlicensed basis. The Commission has adopted new fee categories based in part on the benefits to the payor,
90. In interpreting and applying section 9 of the Act, the Commission has developed a framework to ensure that the resulting fee category fee schedules are fair, administrable, and sustainable. Thus, in evaluating new regulatory fee categories, we consider if assertion of our authority would be fair, administrable, and sustainable while examining any “benefit” provided to the payor by the Commission's FTE activities in oversight and regulation. On the basis of the record developed here, we find that NAB's proposal for a new fee category for users of spectrum on an unlicensed basis does not satisfy these factors.
91. The Commission has explained that a regulatory fee category is unfair if it combines either uses or users that are too different from one another. The Commission bases regulatory fee categories on services or facilities used. Use of spectrum on an unlicensed basis is nearly ubiquitous in modern-day society, and confers widespread benefits. Because of the large variety of uses of spectrum on an unlicensed basis, including for non-communications purposes, there is no specific user, service, or facility using this spectrum that could form the basis for a regulatory fee category of similar services. Entities use spectrum on an unlicensed basis in a variety of ways, including healthcare, security systems, thermostats, alarm systems, baby monitors, fitness trackers, home appliances, garage door openers,
92. Second, we find that such a fee for users of spectrum on an unlicensed basis would be virtually impossible to define or administer, based on the record developed in this proceeding. To adopt a fee on the use of spectrum on an unlicensed basis would be imposing a fee on billions of devices related to a wide variety of applications and industries, a base which continually grows and evolves over time. As commenters observe, because of the large variety of uses of spectrum on an unlicensed basis, it is difficult to determine who would be responsible for paying such regulatory fees as the Commission has no way of identifying the owner and user of the unlicensed devices using this spectrum, and there is no specific service with which to form a regulatory fee category of similar services. We find that the variety of uses of spectrum on an unlicensed basis creates such a broad group of potential payors as to render it virtually meaningless to attempt to identify them because it would be hard to find a consumer or a business that does not use spectrum on an unlicensed basis nearly every day. As the Wi-Fi Alliance observes, imposing new regulatory fees on users of spectrum on an unlicensed basis could affect an unreasonably wide range of entities and individuals, including consumers.
93. With such a large group of users of spectrum on an unlicensed basis, adopting a new regulatory fee category for these users would be the equivalent of asking every industry and consumer to pay this fee, resulting in a regulatory fee scheme far more extensive than our current regulatory fee system and would reach all households and businesses. Such a fee would be logistically infeasible to collect, at least on the basis of this record.
94. NAB argues that users of spectrum on an unlicensed basis place a significant ongoing burden on Commission resources in furtherance of their businesses because the Commission will be involved in amending and monitoring the spectrum use process, responding to requests from the innovation economy to use spectrum in new ways and for new technologies, and enforcing its rules, not only to prevent interference to licensed users, but to ensure the end user can actually use the devices and products. We are not convinced that the mere fact that FTE time involved in oversight and regulation of such spectrum use is a sufficient reason to adopt a new regulatory fee category. As discussed above, there is no particular service, industry, or other discrete group of potential regulatory fee payors for the use of spectrum on an unlicensed basis, because essentially all consumers and manufacturers have devices that use spectrum on an unlicensed basis. Moreover, the Commission previously has observed that regulatees rely on consistency of treatment in regulatory fees from year to year and thus the Commission has hesitated to make changes which would result in rapid shifts in regulatory fees. We therefore find that, in this instance, creating such categories does not serve the Commission's goal of having an administrable framework.
95. Additionally, a regulatory fee category related to use of spectrum on an unlicensed basis, assessed on devices, if adopted, would not be sustainable for the same reasons elaborated above. Ever-changing technology results in increased use of spectrum on an unlicensed basis over time and the Commission would have to continually re-assess this regulatory fee category to ensure that it is being implemented in a fair and equitable manner among all regulatory fee payors. With respect to the logistics of imposing an annual regulatory fee on users of devices capable of using spectrum on an unlicensed basis, it is unclear whether and how device manufacturers or distributors would be responsible for paying such a fee. The Commission establishes rules for and administers the equipment authorization program to ensure that RF devices used in the United States operate effectively without causing harmful interference and otherwise comply with the Commission's rules. However, under the current equipment authorization regime, the Commission does not collect information from or communicate with all device manufacturers because, many devices only require SDoC s or are exempt from authorization because they pose a limited potential of causing harmful interference. Further, the Commission has no reasonable means by which to comprehensively identify each and every individual user of RF devices on an unlicensed basis. Thus, it would be nearly impossible for the Commission to annually assess and collect the regulatory fees each year in a fair and sustainable manner consistent with section 9 of the Communications Act.
96. Finally, NAB contends that the Commission cannot continue to place the burden of paying for use of spectrum on an unlicensed basis on broadcasters who are forced to compete with some of the world's largest technology companies unencumbered by regulatory fee burdens in the name of administrative simplicity. Some “Big Tech” companies are a subset of the users of spectrum on an unlicensed basis. Thus, our above reasons for declining to adopt a regulatory fee category for users of spectrum on an unlicensed basis apply equally to any such “Big Tech” companies on the sole basis of being users of spectrum on an unlicensed basis, as proposed by commenters.
97. Further, we decline to create a new regulatory fee category for the use of spectrum on an unlicensed basis premised on competitive considerations in the advertising industry. We have described above the record evidence demonstrating the broad and varied universe of users of spectrum on an unlicensed basis. There is no evidence in the record of any discernable and practicable overlap between the universe of users of spectrum on an unlicensed basis and the advertising industry, and commenters do not explain how the Commission separately regulates or expends FTE resources on those that might be competing with broadcasters for advertising revenues. Thus, competition for advertising revenues is not a sufficient basis for creating a new regulatory fee category under section 9 of the Act. Accordingly, as we discussed above, we find that a
98. In the
99. In 2020 and 2021, we provided relief to regulatees experiencing financial hardship caused or exacerbated by the COVID-19 pandemic. In light of the ongoing pandemic and the likely continuing economic effect on certain Commission regulatees, we find good cause exists to provide again the following temporary relief measures for FY 2022. We anticipate that many regulatees will avail themselves of these measures, as they did in FY 2020 and FY 2021, and that implementing the measures will provide needed relief to those regulatees. First, we waive the requirement under section 1.1166 of the Commission's rules that regulatees seeking waiver (or reduction) and deferral of their regulatory fees on financial grounds related to the pandemic file separate pleadings for each form of relief sought. Instead, regulatees may combine their requests for relief in a single pleading. Second, we waive the paper filing requirement under section 1.1166 and instruct regulatees to instead file their requests electronically, to
100. We remind regulatees that we cannot relax the standard for granting a waiver or deferral of fees, penalties, or other charges for late payment of regulatory fees under section 9A of the Act. Under the statute, the Commission may only waive a regulatory fee, penalty, or interest charge if it finds there is good cause for the waiver and that the waiver is in the public interest. The Commission has only granted financial hardship waivers when the requesting party has shown it “lacks sufficient funds to pay the regulatory fees and to maintain its service to the public.” Other statutory limitations include that the Commission must act on waiver requests individually, and cannot extend the deadline we set for payment of fees beyond September 30.
101. Included below are procedural items as well as our current payment and collection methods.
102.
103.
104.
105.
•
•
•
•
•
•
•
106.
107. A carrier wishing to revise its telephone number (subscriber) count can do so by accessing Fee Filer and follow the prompts to revise their telephone number counts. Any revisions to the telephone number counts should be accompanied by an explanation or supporting documentation. The Commission will then review the revised count and supporting documentation and either approve or disapprove the submission in Fee Filer. If the submission is disapproved, the Commission will contact the provider to afford the provider an opportunity to discuss its revised subscriber count and/or provide additional supporting documentation. If we receive no response from the provider, or we do not reverse our initial disapproval of the provider's revised count submission, the fee payment must be based on the number of subscribers listed initially in Fee Filer. Once the timeframe for revision has passed, the telephone number counts are final and are the basis upon which CMRS regulatory fees are to be paid. Providers can view their
108. Because some carriers do not file the NRUF report, they may not see their telephone number counts in Fee Filer. In these instances, the carriers should compute their fee payment using the standard methodology that is currently in place for CMRS Wireless services (
109.
In order to calculate individual service fees for FY 2022, we adjusted FY 2021 payment units for each service to more accurately reflect expected FY 2022 payment liabilities. We obtained our updated estimates through a variety of means and sources. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections, where available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS), Licensing and Management System (LMS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireless Telecommunications Bureau's
We sought verification for these estimates from multiple sources and, in all cases, we compared FY 2022 estimates with actual FY 2021 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated with sufficient accuracy. These include an unknown number of waivers and/or exemptions that may occur in FY 2022 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2022 payment units are based on FY 2021 actual payment units, it does not necessarily mean that our FY 2022 projection is exactly the same number as in FY 2021. We have either rounded the FY 2022 number or adjusted it slightly to account for these variables.
For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime antennas, specific information on each day tower, including field ratio, phase, spacing, and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane (RMS) figure (milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or augmented standard if pertinent, horizontal plane radiation pattern was calculated using techniques and methods specified in sections 73.150 and 73.152 of the Commission's rules. Radiation values were calculated for each of 360 radials around the transmitter site. Next, estimated soil conductivity data was retrieved from a database representing the information in FCC Figure R3. Using the calculated horizontal radiation values, and the retrieved soil conductivity data, the distance to the principal community (5 mV/m) contour was predicted for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2010 block centroids were contained in the polygon. (A block centroid is the center point of a small area containing population as computed by the U.S. Census Bureau.) The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.
The greater of the horizontal or vertical effective radiated power (ERP) (kW) and respective height above average terrain (HAAT) (m) combination was used. Where the antenna height above mean sea level (HAMSL) was available, it was used in lieu of the average HAAT figure to calculate specific HAAT figures for each of 360 radials under study. Any available directional pattern information was applied as well, to produce a radial-specific ERP figure. The HAAT and ERP figures were used in conjunction with the Field Strength (50-50) propagation curves specified in 47 CFR 73.313 of the Commission's rules to predict the distance to the principal community (70 dBu (decibel above 1 microVolt per meter) or 3.17 mV/m) contour for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2010 block centroids were contained in the polygon. The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the
2. In the
3. In the
4. None.
5. No comments were filed by the Chief Counsel for Advocacy of the Small Business Administration.
6. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
7.
8. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.
9. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”
10.
11.
12. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22. The Commission estimates that as of March 31, 2022, there were 1,373 licensed commercial television stations. Of this total, 1,280 stations (or 93.2%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on June 1, 2022, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates as of March 31, 2022, there were 384 licensed noncommercial educational (NCE) television stations, 383 Class A TV stations, 1,840 LPTV stations and 3,231 TV translator stations. The Commission however does not compile, and otherwise does not have access to financial information for these television broadcast stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of these television station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.
23.
24. The Commission estimates that as of March 2022, there were 4,508 licensed commercial AM radio stations
25.
26.
27.
28. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that 3,054 firms operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Based on this data, the majority of firms in this industry can be considered small under the SBA small business size standard. According to Commission data however, only two entities provide DBS service—DIRECTV (owned by AT&T) and DISH Network, which require a great deal of capital for operation. DIRECTV and DISH Network both exceed the SBA size standard for classification as a small business. Therefore, we must conclude based on internally developed Commission data, in general DBS service is provided only by large firms.
29.
30.
31.
32.
33.
34.
35. The
36.
37. The
38. The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
39. The
40. There were alternative proposals on various elements of the methodology for assessing regulatory fees and the FY 2022 regulatory fee schedule that the Commission proposed in the
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51. Nevertheless, we conducted a review of the de minimis threshold and calculated the average cost of collecting FY 2021 regulatory fees and included the cost of collecting payor fee data and the cost of processing waiver and installment plan requests, as suggested by some commenters. In the final analysis, the inclusion of these costs did not increase the Commission's average cost of collection above the $1,000 de minimis threshold. Therefore, we determined that the current costs for the Commission to collect regulatory fees including the costs of collecting payor fee data and processing waiver and installment requests, does not justify an increase to the existing $1,000 de minimis threshold.
52. Regarding the definition of the “cost of collection,” we do not agree that the cost of collecting a regulatory fee should be expanded to include all of the Commission's costs to administer the regulatory fee program each year. Rather, we believe a sensible interpretation of the language of section 9(e)(2) of the Act includes only those costs incurred by the Commission once the Commission has established the annual fees. This occurs when the Commission's regulatory fee report and order is released. Our belief in part, relies on the Debt Collection Improvement Act of 1996, as amended, 31 U.S.C. 3701
53.
54. As we explain in the
55. We are not persuaded that changes are required for the OEA FTE allocation, at this time, and expressly rejected the changes proposed in comments. First, an FTE is a full-time equivalent, not an employee, and is based on the hours of work devoted to the regulation and oversight of the fee categories and not a particular job title. Second, FTE time working on auctions issues is not included in the Commission's regulatory fee calculations and is funded separately. Also, OEA FTE numbers attributed to non-auction work stem from FTE levels in OEA's Data Division, Economic Analysis Division, Industry Analysis Division, and its Front Office. The OEA staff participates in the review of all Commission-level items, from all of the Commission's bureaus and offices, and provides economic and other data analysis to the Commission.
56.
57. The Commission will send a copy of the
58. Accordingly,
59.
60.
61.
Administrative practice and procedure, Broadband, Reporting and recordkeeping requirements, Telecommunications.
Part 1 of Title 47 of the Code of Federal Regulations is amended as follows:
47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, unless otherwise noted.
Authority to impose and collect regulatory fees is contained in section 9 of the Communications Act, as amended by sections 101-103 of title I of the Consolidated Appropriations Act of 2018 (Pub. L. 115-141, 132 Stat. 1084), 47 U.S.C. 159, which directs the Commission to prescribe and collect annual regulatory fees to recover the cost of carrying out the functions of the Commission.
(a)
(b)
(2) The fee amount, per active Gbps circuit will be determined for each fiscal year.
(c)