Food and Nutrition Service
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Engineers Corps
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Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA, the Agency, or we), with the Department of the Treasury's concurrence, is amending its regulations to require that certain data elements be submitted for veterinary devices that are being imported or offered for import in the Automated Commercial Environment (ACE) or any other electronic data interchange (EDI) system authorized by U.S. Customs and Border Protection (CBP), in order for CBP to process the filing and to help FDA in determining the admissibility of those veterinary devices. This final rule will make the submission of the general data elements currently required to be submitted in ACE for other FDA-regulated products at the time of entry also required in ACE for veterinary devices being imported or offered for import into the United States. This final rule will increase effective and efficient admissibility review by FDA of those entry lines containing a veterinary device, which will protect public health by allowing the Agency to focus its limited resources on FDA-regulated products that may be associated with a greater public health risk.
This rule is effective November 17, 2022.
For access to the docket to read background documents or comments received, go to
For veterinary devices being imported or offered for import into the United States via ACE or any other EDI system authorized by the CBP, this rule requires the submission of certain data elements material to FDA's process of making decisions on admissibility. This action facilitates automated “May Proceed” determinations by FDA for those veterinary devices that present a low risk to public health which, in turn, allows the Agency to focus our limited resources on those FDA-regulated products that may be associated with a greater public health risk.
This rule revises subpart D of part 1 of 21 CFR chapter I (21 CFR part 1), added by a final rule issued by the Agency on November 29, 2016 (81 FR 85854), to establish requirements for the electronic filing of certain data elements for FDA-regulated products in ACE or any other EDI system authorized by CBP. That final rule took effect on December 29, 2016.
This rule makes the data elements that are required to be submitted for other FDA-regulated products in § 1.72 (21 CFR 1.72) also mandatory for the electronic filing of entries containing a veterinary device: (1) FDA Country of Production; (2) complete FDA Product Code; (3) full intended use code; (4) and telephone number and email address of the importer of record. Submission of these data elements in ACE helps FDA to more effectively and efficiently make admissibility determinations for veterinary devices by increasing the opportunity for automated “May Proceed” of these entries by FDA's import systems. These data elements are currently required to be submitted for the electronic filing of entries containing food contact substances, drugs, biological products, human cells, tissues or cellular or tissue-based products (HCT/Ps), medical devices for human use, radiation-emitting electronic products, cosmetics, and tobacco products.
The legal authority for this final rule includes sections 701 and 801 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 371 and 381).
Cost savings result from increased efficiency in, and streamlining of, FDA's imports admissibility process. These cost savings to the industry and FDA cannot be quantified because FDA currently lacks data to do so. Potential benefits to consumers, that we are similarly unable to quantify, will result from a reduction in the number of non-compliant veterinary device imports reaching U.S. consumers and from
The annualized costs of complying with this regulation are estimated to be between $0.056 million and $0.140 million per year (in 2020 dollars annualized over 20 years using 7 percent discount rate). These costs were already previously inadvertently included and the benefits discussed in the regulatory impact analysis (RIA) for the “Submission of Food and Drug Administration Import Data in the Automated Commercial Environment” 2016 final rule. Because we do not want to double count these costs to the industry, we have concluded that this final rule will have no additional costs beyond the costs that were included in that RIA.
ACE is a commercial trade processing system operated by CBP that is designed to implement the International Trade Data System (ITDS), automate import and export processing, enhance border security, and foster U.S. economic security through lawful international trade and policy. FDA is a Partner Government Agency for purposes of submission of import data in ACE. As of July 23, 2016 (81 FR 32339), ACE became the sole EDI system authorized by CBP for entry of FDA-regulated articles into the United States.
On November 29, 2016, FDA issued a final rule entitled “Submission of Food and Drug Administration Import Data in the Automated Commercial Environment” (the ACE final rule), which added subpart D to part 1 to require that certain data elements material to our import admissibility review be submitted in ACE at the time of entry. This rule adds veterinary devices to the list of other FDA-regulated products being imported or offered for import for which the data elements required under § 1.72 must be submitted in ACE at the time of entry. The data elements in § 1.72 are FDA Country of Production, complete FDA Product Code, full intended use code, and telephone number and email address of the importer of record.
A veterinary device is a “device” as defined in section 201(h) of the FD&C Act (21 U.S.C. 321(h)) that is intended for use in animals. Section 201(h) of the FD&C Act defines “device” as an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is: (1) recognized in the official National Formulary, or the U.S. Pharmacopeia, or any supplement to them; (2) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals; or (3) intended to affect the structure or any function of the body of man or other animals. Further, such device does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and is not dependent upon being metabolized for the achievement of its primary intended purposes.
Manufacturers and distributors of veterinary devices are responsible for ensuring that these devices are safe, effective, and properly labeled. Under section 801(a) of the FD&C Act (21 U.S.C. 381(a)), FDA may refuse admission of veterinary devices being imported or offered for import that appear to be adulterated or misbranded. Devices, including veterinary devices, are subject to the adulteration provisions of section 501 of the FD&C Act (21 U.S.C. 351) and the misbranding provisions of section 502 of the FD&C Act (21 U.S.C. 352). We have determined that the data elements required to be submitted in ACE at the time of entry under § 1.72 are material to our import admissibility review of veterinary devices. Receipt of this information increases the opportunity for automated “May Proceed” determinations by us for those veterinary devices that present a low public health risk which, in turn, allows the Agency to focus our limited resources on those FDA-regulated products that may be associated with a greater public health risk.
ACE electronically transmits the entry data submitted by a filer at the time of entry to FDA via an electronic interface. The entry is then initially screened by FDA using FDA's Predictive Risk-based Evaluation for Dynamic Import Compliance Targeting (PREDICT), a risk-based electronic screening tool, to determine if automated or manual review of the entry is appropriate. An automated “May Proceed” determination is much faster and less resource intensive for FDA and the importer than a manual “May Proceed” determination. An automated “May Proceed” does not constitute a determination by FDA about the article's compliance status, and it does not preclude FDA action later. If the initial electronic review indicates that manual review is appropriate, FDA personnel will review the entry information submitted by the entry filer and may request additional information to make an admissibility determination and/or may examine or sample the FDA-regulated article.
ACE also allows importers to submit optional information relevant to FDA's admissibility determination on veterinary devices. We strongly encourage the submission of the optional data elements in ACE at the time of entry if the importer of an FDA-regulated product is interested in an expedited admissibility review on its
We received four comments on the proposed rule by the close of the comment period, all from individuals. One comment is unintelligible. The remaining three comments from individuals made general remarks supportive of the proposed rule. All suggested extending the beneficial aspects of the proposed electronic submission of the general data elements for veterinary devices to other FDA-regulated products. A requirement for this specific process in the ACE environment for other FDA-regulated products was established under the ACE final rule, which was effective in December 2016. We are finalizing the proposed rule without revision.
FDA is amending § 1.72 to make that section applicable to veterinary devices, as defined in proposed § 1.71. In addition, we are amending § 1.75 to include the requirement that the information in § 1.72 must be submitted in ACE at the time of entry for veterinary devices being imported or offered for import into the United States.
As explained in the Notice of Proposed Rulemaking entitled “Submission of Food and Drug Administration Import Data in the Automated Commercial Environment” published in the
A full intended use code consists of a base code that designates the general use intended for the article and a subcode, if applicable, that designates the specific use intended for the article. Filers may submit the intended use code “UNK,” representing “unknown,” at the time of entry. entry filers need to be aware that submitting “UNK” as the intended use code will, in most cases, subject the entry to a manual review for admissibility provided the entry filing is not rejected by FDA (81 FR 85854 at 85859 to 85860).
The email address and telephone number for the importer of record is also being required. This information will enable us to contact that person with any questions about the import entry as well as send notices of FDA actions, such as detention or refusal, electronically to that person (81 FR 43155 at 43161).
Section 1.75 codifies additional information that is required at the time of filing an entry in ACE for animal drugs being imported or offered for import beyond that listed in § 1.72. The final rule amends § 1.75 to include veterinary devices by: (1) revising the section title to “Animal drugs and veterinary devices”; (2) redesignating current § 1.75(a), (b), (c), and (d) to § 1.75(a)(1), (2), (3), and (4); and (3) adding § 1.75(b) Veterinary devices. Section 1.75(b) states that no additional information is required beyond that listed in § 1.72 for veterinary devices. Current § 1.75(d), redesignated to § 1.75(a)(4) by the final rule, is being amended by adding the word “file” where the section refers to the “investigational new animal drug number” and by replacing the word “application” with “file” where the section refers to “investigational new animal drug application.” This is a technical amendment for the purpose of using the more appropriate terminology “investigational new animal drug file number” and “investigational new animal drug file” in that section, which is consistent with the terminology used in other FDA regulations.
FDA has the legal authority under the FD&C Act to regulate the importation of veterinary devices into the United States (sections 701 and 801 of the FD&C Act). Section 701(a) of the FD&C Act authorizes the Agency to issue regulations for the efficient enforcement of the FD&C Act, while section 701(b) of the FD&C Act authorizes FDA and the Department of the Treasury to jointly prescribe regulations for the efficient enforcement of section 801 of the FD&C Act. This final rule is being jointly prescribed by FDA and the Department of the Treasury.
We received four comments on the proposed rule by the close of the comment period, all from individuals. One comment is unintelligible. The remaining three comments make brief general remarks supportive of the proposed rule; all suggest extending the beneficial aspects of the proposed electronic submission of general data elements for veterinary devices to other FDA-regulated products. A requirement for this specific process in the ACE environment for such other FDA-regulated products was created under the ACE final rule in 2016. Because these comments were outside the scope of this rule, further discussion of them is not included here.
We are finalizing the proposal without revision.
The rule is effective November 17, 2022.
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 believe that this final rule is not an economically 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. This final rule simply extends to veterinary devices the submission of the data
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 $158 million, using the most current (2020) 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.
For veterinary devices being imported or offered for import into the United States, and where entry is electronically filed in ACE or any other EDI system authorized by CBP, this final rule requires the submission of certain data elements material to FDA's process of making decisions on admissibility. This final rule therefore simply extends to veterinary devices the submission of the data elements that are currently required for other FDA-regulated products by § 1.72.
The costs of this final rule were inadvertently included, and the benefits discussed, in the RIA for the ACE final rule (Ref. 2). More specifically, one data category that was used in the RIA of the ACE final rule included both animal drug import lines and veterinary device import lines and should have only included animal drug import lines. As a result of inadvertently including veterinary device import lines in the RIA of the ACE final rule, the costs of the ACE final rule were overestimated by $0.028 million to $0.071 million per year (in 2015 dollars, annualized over 20 years using a 7 percent discount rate). These costs to industry
Next, we qualitatively discuss the benefits and the costs of this final rule that were previously discussed in the RIA of the ACE final rule (Ref. 2) and will also apply to veterinary devices covered by this final rule. The cost savings to both the industry and FDA that we are unable to quantify arise from the reduced time of import entry processing for veterinary devices, fewer veterinary device imports being held, and a shorter timeframe between the time of veterinary device import entry transmission and a final admissibility decision by FDA. Such time savings will arise as a result of increased efficiency in FDA's imports admissibility process.
Without this final rule, the amount of information provided by veterinary device import entry filers would be sub-optimal; the information material to FDA's determination of admissibility on an imported veterinary device would be collected only if and to the extent it is voluntarily provided by filers. In order to operate more efficiently and to make risk-based admissibility decisions potentially faster for all veterinary device import entries, FDA needs certain data elements. A manual review of a veterinary device entry line on average takes about 24 hours (Ref. 3), whereas an automated “May Proceed” outcome may take only minutes. Therefore, increasing the number of automated “May Proceed” outcomes results in time and cost savings to both FDA and industry. By requiring import entry filers to submit data elements mandated by this final rule into ACE, FDA will further streamline review of import entry declarations for veterinary devices and will facilitate a more efficient use of FDA's internal resources.
Benefits to consumers from this final rule that we are similarly unable to quantify will result from a reduction in the number of non-compliant veterinary device imports reaching U.S. consumers and from compliant imported veterinary devices reaching U.S. consumers faster. There have been recalls of imported veterinary devices in the past. For example, in 2016 there were three recalls of imported veterinary devices (Ref. 3). The potential health risk could be avoided if non-compliant veterinary devices are prevented from entering the U.S. market in the first place. FDA anticipates that requiring the data elements to be submitted in ACE for veterinary devices will reduce the number of violative veterinary devices entering the United States and consequently reaching American consumers. In some, but not in all cases, defects or adulteration of veterinary devices that are being imported or offered for import into the United States will be discovered upon a manual review that will be triggered as a result of information submitted in ACE.
In the RIA of the ACE final rule, we estimate that the costs to both domestic and foreign entities of complying with the rule as based largely on the amount of additional time it will take firms to: (1) have an administrative worker prepare the additional information required for each import line; (2) have the owner or manager in charge confirm the information is correct; and (3) have an administrative worker complete the entry declarations using software that is connected to ACE. We also projected that the annual number of FDA-regulated import lines and the number of lines covered by the ACE final rule and therefore by this final rule would continue to grow at a rate of between 0 and 10 percent per year, with the most likely rate of 2.45 percent per year, resulting in increasing total annual costs to industry. For years since the publication of the ACE final rule (2016 to 2020), we replaced this assumption with actual veterinary device import line counts.
The estimated costs of this final rule are summarized in table 2. The lower and upper estimates are at the 5 and 95 percent confidence interval, respectively. Updated to 2020 dollars, the present value of total costs of this rule is $0.81 million at a 7 percent discount rate and $1.19 million at a 3 percent discount rate.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Veterinary device importers that are impacted by this final rule are included in the Final Regulatory Flexibility Analysis for the ACE final rule (Ref. 2). As such, the impacts on these small businesses are already discussed in the Regulatory Flexibility Analysis for the ACE final rule (Ref. 2). This analysis serves as the Final Regulatory Flexibility Analysis for this rule, as required under the Regulatory Flexibility Act. Because no additional business will be impacted by this final rule (Ref. 3), we certify that the final rule will not have a significant economic impact on a substantial number of small entities.
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 (PRA) (44 U.S.C. 3501-3521). A description of these provisions is given in the
Currently, importers of certain FDA-regulated products must submit the general data elements in § 1.72 at the time of entry in ACE. We use the information collected to initially screen and review FDA-regulated products being imported or offered for import into the United States for admissibility in order to prevent violative FDA-regulated products from entering the United States. This final rule makes the data elements that are required to be submitted for FDA-regulated products pursuant to § 1.72 also mandatory for the electronic filing of entries containing a veterinary device: FDA Country of Production; complete FDA Product Code; full intended use code; and telephone number and email address of the importer of record. Submission of these data elements in ACE would help us to more effectively and efficiently make admissibility determinations for veterinary devices by increasing the opportunity for an
Although veterinary devices were not included in the ACE final rule, veterinary devices were included in its RIA, as aggregate data for both animal drugs and devices was included in the analysis. As a result of inadvertently including veterinary device import lines in the RIA of the ACE final rule, the information collection burden estimates of the ACE final rule likewise incorporated the importation of veterinary devices.
As stated above, the analysis of the collection of information and its related burden on respondents for the ACE final rule incorporated the one-time and recurring burden related to importation of veterinary devices by medical devices importers; thus, for this final rule there is no additional estimated burden beyond the burden hours that were included in the PRA section of the ACE final rule. We are, however, revising the information collection approved under OMB control number 0910-0046 to identify the subset of burden specific to the import entries for veterinary devices by importers of medical devices for the purpose of allowing stakeholders to comment on this subset.
The portion of the annual recurring reporting burden of this collection of information specific to importers of medical devices that import veterinary devices is estimated as follows:
We adopt the average burden per response estimates reported in table 3 from the analysis in the ACE final rule (81 FR 85854 at 85869). To estimate the number of respondents, number of responses per respondent, and total annual responses reported in table 3, we have used the relevant assumptions and estimates discussed in Section VI. Economic Analysis of Impacts and the actual data for 2016 to 2018. Other key assumptions in the RIA for the ACE final rule (Ref. 2) and for this final rule that affect our estimate of the annual recurring reporting burden are:
• Average burden per response for preparing the required information that applies to unique product-manufacturer import lines only (81 FR 85854 at 85869). It is estimated to take between 0.0167 hours (1 minute) and 0.0667 (4 minutes), with the best estimate of 0.03889 hours (2.333 minutes).
• Average burden per response for quality checks and data submission into ACE applies to all veterinary device lines. It is estimated to take between 0.0083 hours (0.5 minute) and 0.0333 hours (2 minutes) with the best estimate of 0.01944 hours (1.166 minutes).
Table 4 shows the subset of the estimated one-time (
We estimate the subset of burden specific to the import entries for veterinary devices approved under OMB control number 0910-0046 to be 792 hours in the first year (672 recurring hours + 120 one-time hours) and 672 hours recurring after the first year.
In compliance with the PRA (44 U.S.C. 3407(d)), the Agency has submitted the information collection provisions of this final rule to OMB for review. These requirements will not be effective until FDA obtains OMB approval. FDA will publish a notice concerning OMB approval of these requirements in the
We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. We have determined that the final rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we conclude that this final 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 final rule in accordance with the principles set forth in Executive Order 13175. We have determined that the final 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 references are on display in the Dockets Management Staff (see
Cosmetics, Drugs, Exports, Food labeling, Imports, Labeling, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 1 is amended as follows:
15 U.S.C. 1333, 1453, 1454, 1455, 4402; 19 U.S.C. 1490, 1491; 21 U.S.C. 321, 331, 332, 333, 334, 335a, 342, 343, 350c, 350d, 350e, 350j, 350k, 352, 355, 360b, 360ccc, 360ccc-1, 360ccc-2, 362, 371, 373, 374, 379j-31, 381, 382, 384, 384a, 384b, 384d, 387, 387a, 387c, 393; 42 U.S.C. 216, 241, 243, 262, 264, 271; Pub. L. 107-188, 116 Stat. 594, 668-69; Pub. L. 111-353, 124 Stat. 3885, 3889.
(a)
(1)
(2)
(3)
(4)
(b)
In concurrence with FDA.
National Indian Gaming Commission, Department of the Interior.
Final rule.
The National Indian Gaming Commission (NIGC) is amending its regulations regarding self-regulation of Class II gaming under the Indian Gaming Regulatory Act. The amendment revises the regulations to address an ambiguity in the petitioning process and clarifies the Office of Self-Regulation's (OSR) role once the Commission issues a certificate. Notably, the amendment: Clarifies the NIGC may issue a final decision on issuing a certificate within 30 days instead of after 30 days; removes the requirement that the director of the OSR must be a Commissioner; enumerates the OSR is the correct party to receive notifications of material changes from self-regulated tribes; expands the deadline for tribes to report material changes to the OSR from three business days to 10 business days; clarifies the OSR will be the office to make any recommendations to revoke a certificate of self-regulation before the Commission; and clarifies that, in any revocation proceeding, the OSR has the burden to show just cause for the revocation and carry that burden by a preponderance of the evidence.
Effective November 17, 2022.
Michael Hoenig, National Indian Gaming Commission; 1849 C Street NW, MS 1621, Washington, DC 20240. Telephone: (202) 632-7003.
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701
On January 31, 2012, the Commission published a notice of proposed rulemaking to promulgate part 518, the procedures controlling self-regulation. 77 FR 4714 (Jan. 31, 2012). Once promulgated, part 518 established the procedures for the Commission and the OSR to, among other things, receive, evaluate, recommend, issue, deny, or revoke a certificate of self-regulation. On September 1, 2013, after initial publication, the Commission enacted minor revisions to part 518 to amend certain timelines and an incorrect section heading and reference to IGRA. 78 FR 37114 (Sept. 1, 2013).
On June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the procedures controlling self-regulation. Prior to consultation, the Commission released proposed discussion drafts of the regulations for review. The proposed amendments are intended to improve the Agency's efficiency in evaluating petitions for self-regulation, reduce the time it takes to obtain a certificate of self-regulation, and clarify the Office of Self-Regulation's functions.
The Commission held two virtual consultation sessions in September and one virtual consultation in October of 2021 to receive tribal input on any proposed changes. After considering the comments received from the public and through tribal consultations, the Commission published a notice of proposed rulemaking on April 7, 2022, 87 FR 20351. The notice of proposed rulemaking indicated that comments were due on or before June 6, 2022. On June 16, 2022, 87 FR 36280, the NIGC announced the reopening of the comment period until June 23, 2022.
The Commission reviewed all of the public's comments and now adopts these changes, which it believes will improve the self-regulation process.
The Commission received the following comments in response to the notice of proposed rulemaking.
The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises to compete with foreign based enterprises.
The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of section 3(a) and 3(b)(2) of the order.
The Commission has determined that the rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321,
The information collection requirements contained in this rule were previously approved by the Office of Management and Budget (OMB) as required by 44 U.S.C. 3501
The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC consultation policy specifies that it will consult with tribes on Commission Actions with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.
Pursuant to this policy, on June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the self-regulation process.
Gambling, Indian—lands, Indian—tribal government, Reporting and recordkeeping requirements.
Therefore, for reasons stated in the preamble, 25 CFR part 518 is amended as follows:
25 U.S.C. 2706(b)(10); 25 U.S.C. 2710(c).
The self-regulation program will be administered by the Office of Self-Regulation. The Chair shall appoint a Director to administer the Office of Self-Regulation.
(b) A tribe may illustrate that it has met the criteria listed in paragraph (a) of this section by addressing factors such as those listed in paragraphs (b)(1) through (9) of this section. The list of factors is not all-inclusive; other factors not listed here may also be addressed and considered.
(f) The Commission shall issue a final determination within 30 days after issuance of its preliminary findings if the tribe has informed the Commission in writing that the tribe does not request a hearing or within 30 days after the conclusion of a hearing, if one is held. The decision of the Commission to approve or deny a petition shall be a final agency action.
Yes. A tribe that holds a certificate of self-regulation has a continuing duty to
If the Office of Self-Regulation determines that the tribe no longer meets or did not comply with the eligibility criteria of § 518.3, the approval criteria of § 518.5, the requirements of § 518.10, or the requirements of § 518.11, the Office of Self-Regulation shall prepare a written recommendation to the Commission and deliver a copy of the recommendation to the tribe. The Office of Self-Regulation's recommendation shall state the reasons for the recommendation and shall advice the tribe of its right to a hearing under part 584 of this chapter or right to appeal under part 585 of this chapter. The Commission may, after an opportunity for a hearing, revoke a certificate of self-regulation by a majority vote of its members if it determines that the tribe no longer meets the eligibility criteria of § 518.3, the approval criteria of § 518.5, the requirements of § 518.10 or the requirements of § 518.11.
Yes. A tribe may request a hearing regarding the Office of Self-Regulation's recommendation that the Commission revoke a certificate of self-regulation. Such a request shall be filed with the Commission pursuant to part 584 of this chapter. Failure to request a hearing within the time provided by part 584 of this chapter shall constitute a waiver of the right to a hearing. At any hearing where the Commission considers revoking a certificate, the Office of Self-Regulation bears the burden of proof to support its recommendation by a preponderance of the evidence. The decision to revoke a certificate is a final agency action and is appealable to Federal District Court pursuant to 25 U.S.C. 2714.
U.S. Army Corps of Engineers, DoD.
Final rule.
The U.S. Army Corps of Engineers (Corps) is issuing this final rule to adjust its civil monetary penalties (CMP) under the Rivers and Harbors Appropriation Act of 1922 (RHA), the Clean Water Act (CWA), and the National Fishing Enhancement Act (NFEA) to account for inflation.
This final rule is effective on October 18, 2022.
For the RHA portion, please contact Mr. Paul Clouse at 202-761-4709 or by email at
The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, codified at 28 U.S.C. 2461, note, as amended, requires agencies to annually adjust the level of CMP for inflation to improve their effectiveness and maintain their deterrent effect, as required by the Federal Civil Penalties Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701, November 2, 2015 (“Inflation Adjustment Act”).
With this rule, the new statutory maximum penalty levels listed in Table 1 will apply to all statutory civil penalties assessed on or after the effective date of this rule. Table 1 shows the calculation of the 2022 annual inflation adjustment based on the guidance provided by the Office of Management and Budget (OMB) (see December 15, 2021, Memorandum for the Heads of Executive Departments and Agencies, Subject: Implementation of Penalty Inflation Adjustments for 2022, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). The OMB provided to agencies the cost-of-living adjustment multiplier for 2022, based on the Consumer Price Index for All Urban Consumers (CPI-U) for the month of October 2021, not seasonally adjusted, which is 1.06222. Agencies are to adjust “the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment.” For 2022, agencies multiply each applicable penalty by the multiplier, 1.06222, and round to the nearest dollar. The multiplier should be applied to the most recent penalty amount,
Section 4 of the Inflation Adjustment Act directs federal agencies to publish annual penalty inflation adjustments. In accordance with section 553 of the Administrative Procedures Act (APA), many rules are subject to notice and comment and are effective no earlier than 30 days after publication in the
In compliance with the principles in the President's Memorandum of June 1, 1998, regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps and the use of “you” refers to the reader. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.
This rule is not designated a “significant regulatory action” under Executive Order 12866 and OMB determined this rule to not be significant. Moreover, this final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the Inflation Adjustment Act and OMB guidance. The Corps, therefore, did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule.
The Department of Defense determined that provisions 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, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements. This action merely increases the level of statutory civil penalties that could be imposed in the context of a federal civil administrative enforcement action or civil judicial case for violations of Corps-administered statutes and implementing regulations.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.
The Assistant Secretary of the Army (Civil Works) certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601,
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule the mandates of which require spending in any year of $100 million in 1995 dollars, updated annually for inflation. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272 note), directs us to use voluntary consensus standards in our regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
Executive Order 13045 applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2)
Executive Order 13175 requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule does not have tribal implications. The rule imposes no new substantive obligations on tribal governments. Therefore, Executive Order 13175 does not apply to this rule.
The Congressional Review Act, 5 U.S.C. 801
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin. This rule merely adjusts civil penalties to account for inflation, and therefore, is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities.
This rule is not a “significant energy action” as defined in Executive Order 13211 because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Navigation (water), Penalties, Reporting and recordkeeping requirements, and Waterways.
Administrative practice and procedure, Intergovernmental relations, Investigations, Law enforcement, Navigation (Water), Water pollution control, and Waterways.
Approved by:
For the reasons set out in the preamble, title 33, chapter II, part 207 of the Code of Federal Regulations is amended as follows:
33 U.S.C. 1; 33 U.S.C. 555; 28 U.S.C. 2461 note.
(c) * * *
(2) In addition, any person or entity that fails to provide timely, accurate, and complete statements or reports required to be submitted by the regulation in this section may also be assessed a civil penalty of up to $6,270 per violation under 33 U.S.C. 555, as amended.
33 U.S.C. 401
(a) * * * (1) This section sets forth procedures for initiation and administration of Class I administrative penalty orders under Section 309(g) of the Clean Water Act, judicially-imposed civil penalties under Section 404(s) of the Clean Water Act, and Section 205 of the National Fishing Enhancement Act. Under Section 309(g)(2)(A) of the Clean Water Act, Class I civil penalties may not exceed $23,990 per violation, except that the maximum amount of any Class I civil penalty shall not exceed $59,974. Under Section 404(s)(4) of the Clean Water Act, judicially-imposed civil penalties may not exceed $59,974 per day for each violation. Under Section 205(e) of the National Fishing Enhancement Act, penalties for violations of permits issued in accordance with that Act shall not exceed $26,269 for each violation.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving portions of revisions to the State Implementation Plan (SIP) submitted by the State of North Carolina, through the North Carolina Department of Environmental Quality, Division of Air Quality (DAQ), on September 18, 2009, and July 10, 2019. These revisions modify two different sections of the North Carolina SIP which (1) exclude certain categories of facilities from title V permitting requirements by imposing limitations on their potential emissions (Section 2Q .0800, “Exclusionary Rules”), and (2) exclude certain categories of facilities from the SIP's permitting requirements by imposing limitations on their potential emissions (Section 2Q .0900, “Permit Exemptions”). EPA is approving these revisions pursuant to the Clean Air Act (CAA or Act).
This rule is effective November 17, 2022.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2020-0187. All documents in the docket are listed on the
Pearlene Williams, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Williams can be reached via telephone at (404) 562-9144 or via electronic mail at
In a notice of proposed rulemaking (NPRM) published on January 19, 2021 (86 FR 5091), EPA proposed to approve changes to several provisions under 15A North Carolina Administrative Code (NCAC) Subchapter 2Q, Air Quality Permit Procedures,
EPA also proposed revisions to the following rules under Section 2Q .0900 (“Permit Exemptions”), which defines the categories of facilities that are exempt from the State's SIP permitting requirements for non-title V facilities by limiting their potential emissions: 2Q .0901,
EPA received comments on the January 19, 2021, NPRM, which are included in the docket for this rulemaking. The comments arrived in a letter dated February 18, 2021, and originate from one commentor, Air Law for All. The Commenter also provided supplemental documentation to support its comments. The comments are generally opposed to the revisions to the permit exemption provisions of Rule 2Q .0902,
A crusher is a machine designed to crush rocks into sand, gravel, or smaller crushed rocks. The term “temporary crusher” means a crusher that will be operated at any one site or facility for
(1) crushes no more than 300,000 tons at any one facility or site;
(2) burns no more than 17,000 gallons of diesel fuel at any one facility or site if uses:
(A) a diesel-fired generator, or
(B) a diesel engine to drive the crusher;
(3) does not operate at a quarry that has an air permit issued under this subchapter;
(4) continuously uses water spray to control emissions from the crushers; and
(5) does not operate at a facility that is required to have a mining permit issued by the Division of Energy, Mineral, and Land Resources.
These five criteria are not regulating the use and operation of the crushers or the diesel engines that run them; they are the criteria that a temporary crusher must meet under the existing North Carolina SIP to qualify for an exemption from the State's construction and operation permit provisions at Section 2Q .0300. North Carolina's July 10, 2019, SIP revision removes only one of these five criteria—the second one regarding the burning of diesel fuel, which places no restriction on the combustion of diesel fuel by an engine or generator and no limitation on the emissions from such combustion. The other four criteria remain for determining whether a temporary crusher qualifies for the permit exemption.
EPA agrees with the Commenter that diesel engines used at a temporary source, such as these temporary crushers, are considered nonroad engines and that states are not precluded from regulating the use and operation of these engines. However, North Carolina's SIP explicitly exempts title II nonroad engines from its permitting requirements.
North Carolina submitted the temporary crusher permitting exemption to EPA as a SIP revision on December 14, 2004, and EPA approved the revision on September 29, 2017.
As discussed above, North Carolina does not regulate nonroad engines, which are instead regulated by EPA under title II of the CAA.
With regard to permitting the stationary source, even if a temporary crusher with a nonroad engine that combusts more than 17,000 gallons at any one facility or site were to become exempt from the State's construction and operation permits program following removal of the fuel combustion criterion, EPA expects no appreciable impact on air quality. First, provision 2Q .0902(c) protects the fine and coarse PM NAAQS by requiring the owner or operator of a temporary crusher to reduce to a minimum any particulate matter from becoming airborne to prevent exceeding the ambient air quality standards for particulate matter beyond the property line.
For the reasons discussed above, EPA has concluded that the revisions to Rule 2Q .0902 will not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable CAA requirement.
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I and II of this preamble, EPA is finalizing the incorporation by reference of the following rules under Subchapter 2Q Air Quality Permits with a state-effective date of April 1, 2018: 2Q .0801,
EPA is approving the changes described above to the North Carolina SIP submitted by the State of North Carolina on September 18, 2009, and July 10, 2019. The changes to 2Q .0801,
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 19, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
The amendment reads as follows:
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
Virginia has applied to the United States Environmental Protection Agency (EPA) for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these revisions satisfy all requirements needed to qualify for final authorization and is hereby authorizing Virginia's revisions through this direct final rule. In the “Proposed Rules” section of this issue of the
This final authorization will become effective on December 19, 2022, unless EPA receives adverse written comments by November 17, 2022. If EPA receives any such comments, then EPA will publish a timely withdrawal of this direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R03-RCRA-2022-0351 at
Jacqueline Morrison, RCRA Programs Branch, Land, Chemicals and Redevelopment Division, U.S. Environmental Protection Agency Region III, Four Penn Center, 1600 John F. Kennedy Blvd. (Mail code 3LD30), Philadelphia, PA 19103-2852, Phone number: (215) 814-5664; email:
States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program is revised to become more stringent or broader in scope, States must revise their programs and apply to EPA to authorize the revisions. Authorization of revisions to state programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other revisions occur. Most commonly, States must revise their programs because of revisions to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
On January 10, 2022, Virginia submitted a final program revision application (with subsequent corrections) seeking authorization of revisions to its hazardous waste program that correspond to certain Federal rules promulgated through February 22, 2019.
EPA concludes that Virginia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA grants Virginia final authorization to operate its hazardous waste program with the revisions described in its authorization application, as outlined below in Section G of this document. Virginia has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions for which Virginia has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.
This action serves to authorize revisions to Virginia's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which Virginia is being authorized by this action are already effective and are not changed by this action. Virginia has enforcement responsibilities under its State hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Perform inspections, and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements and suspend or revoke permits; and
• Take enforcement actions regardless of whether Virginia has taken its own actions.
Along with this direct final rule, EPA is publishing a separate document in the “Proposed Rules” section of this issue of the
If EPA receives adverse comments pertaining to this State revision, EPA will withdraw this direct final rule by publishing a document in the
Virginia initially received final authorization of its hazardous waste program effective December 18, 1984 (49 FR 47391). EPA granted authorization for revisions to Virginia's regulatory program effective August 13, 1993 (58 FR 32855); September 29, 2000 (65 FR 46607); June 20, 2003 (68 FR 36925); July 10, 2006 (71 FR 27204); July 30, 2008 (73 FR 44168); and November 4, 2013 (78 FR 54178).
On January 10, 2022, Virginia submitted a final program revision application (with subsequent corrections) seeking authorization of additional revisions to its hazardous waste program, as published in the Code of Federal Regulations from June 13, 2011, through February 22, 2019.
EPA now makes a direct final rule, subject to receipt of written comments that oppose this action, that Virginia's hazardous waste program revision application satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants Virginia final authorization for the following program revisions:
Virginia seeks authority to administer the Federal requirements that are listed in Table 1 of this document. Virginia incorporates by reference these Federal provisions, in accordance with the dates specified in Title 9, Virginia Administrative Code (9VAC 20-60-18). This Table 1 lists the Virginia analogs that are being recognized as no less stringent than the analogous Federal requirements.
The Virginia Waste Management Act (VWMA) enacted by the 1986 session of Virginia's General Assembly and recodified in 1988 as Chapter 14, Title 10.1, Code of Virginia, forms the basis of the Virginia program. These regulatory references are to Title 9, Virginia Administrative Code (9 VAC) effective through August 23, 2019. On November 4, 2013 (78 FR 54178, September 3, 2013), Virginia received approval of Program Revision V to its hazardous waste management program. Since then, Virginia's regulations have been updated to include Federal regulatory changes. This application, Program Revision VI, addresses certain changes made to Virginia's hazardous waste program between January 1, 2011, and August 23, 2019.
In addition, Virginia will be authorized to carry out, in lieu of the Federal program, State-initiated revisions to provisions of the State's program. These State-initiated revisions to some of Virginia's existing regulations are for the purpose of correcting errors and adding consistency or clarification to the existing regulations. The following State provisions were previously equivalent, more stringent, or broader in scope and now they are all equivalent and analogous to the RCRA provisions found at Title 40 of the Code of Federal Regulations: 9VAC20-60-315 H, 9VAC20-60-420 E, 9VAC20-60-430 F, 9VAC20-60-440 A, B, C, C 1, D, and E, 9VAC20-60-450 (repealed), 9VAC20-60-480 E 1, L, and M, 9VAC20-60-490 B 3, and 9VAC20-60 Forms.
When revised State rules differ from the Federal rules in the RCRA State authorization process, EPA determines whether the State rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to RCRA section 3009, 42 U.S.C. 6929, State programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable.
The following Virginia provisions are more stringent than the Federal program.
• Virginia is more stringent than the Federal program at 9VAC20-60-490 C 4 by requiring that reports be submitted to the State as well as to Federal authorities.
• Virginia is more stringent than the Federal program at 9VAC20-60-262 B 4 by requiring that large quantity generators notify the State of each location where hazardous waste is accumulated.
• Virginia is more stringent than the Federal program at 9VAC20-60-262 B 6 by requiring any receiving treatment, storage, or disposal facility to hold a permit; Virginia is also more stringent than the Federal program by requiring an EPA identification number for transporters.
• Virginia's regulations, at 9VAC20-60-260 A, incorporate by reference the Federal regulations at 40 CFR part 260, with some additions, modifications, and exceptions, including the modification at 9VAC20-60-260 B 2. This provision is more stringent than the Federal program in that it imposes additional requirements for the management of hazardous secondary materials in a land-based unit.
• On January 13, 2015, EPA issued a final rule that became effective on July 13, 2015, revising several recycling-related provisions associated with the definition of solid waste used to determine hazardous waste regulation under RCRA subtitle C (80 FR 1694). The revisions included adding conditions to certain exclusions and adding a codified definition of “contained.” On May 30, 2018, EPA issued the final rule: “Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule,” 83 FR 24664. Because the 2018 rule included provisions that are less stringent than the 2015 revisions, states that adopted the 2015 rule were not required to adopt the 2018 rule. The Virginia regulations, at 9VAC20-60-18, 9VAC20-60-260 B 9, 9VAC20-60-260 B 14, and 9VAC20-60-261 B 14, specify that Virginia is retaining the 2015 rules. In that respect, the Virginia regulations are more stringent than the Federal program.
Although the statute does not prevent States from adopting regulations that are broader in scope than the Federal program, States cannot receive authorization for such regulations. EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by Virginia law.
The following Virginia provisions are broader in scope than the Federal program in that they require the payment of fees that are not required by the Federal program:
• 9VAC20-60-1280 B requires the payment of permit application fees.
• 9VAC20-60-1284 B 2 requires the payment of annual fees.
• 9VAC20-60-1260 B, C, D, E, F, and G 3, insofar as these provisions address hazardous waste program fees.
• 9VAC20-60-1270 B, C, C 5, D, and E set forth the method by which application fee amounts shall be determined.
• 9VAC20-60-1283 A, B, and C set forth the method by which annual fee amounts shall be determined.
• 9VAC20-60-1285 Table 1 sets forth the schedule of permit application fees.
After this authorization revision, Virginia will continue to issue permits covering all the provisions for which it is authorized and will administer all such permits. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that it issued prior to the effective date of this authorization until the timing and process for effective transfer to the State are mutually agreed upon. Until such time as EPA formally transfers responsibility for a permit to Virginia and EPA terminates its permit, EPA and Virginia agree to coordinate the administration of such a permit in order to maintain consistency. EPA will not issue any more new permits or new portions of permits for the provisions listed in Section G of this document after the effective date of this authorization. EPA will continue to implement, and issue permits for HSWA requirements for which Virginia is not yet authorized.
Virginia is not authorized to carry out the hazardous waste program in Indian country (18 U.S.C. 1151) within the State. EPA will implement and administer the RCRA program on these lands.
Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA is not proposing to codify the authorization of Virginia's revisions at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart VV, for this authorization of Virginia's program revisions until a later date.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore, this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This action will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks that may disproportionately affect children. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, because it approves pre-existing State rules that are no less stringent than existing Federal requirements and imposes no additional requirements beyond those imposed by State law. For these reasons, this rule is not subject to Executive Order 12898.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and record keeping requirements.
This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule; correction.
DoD, GSA, and NASA are issuing a correction to FAC 2022-05; FAR Case 2021-008; Amendments to the FAR Buy American Act Requirements; which published in the
Effective: October 25, 2022.
Ms. Mahruba Uddowla, Procurement Analyst, at 703-605-2868 or by email at
In rule FR Doc. 2022-04173, published in the
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) is issuing a final rule amending the VA Acquisition Regulation (VAAR). This rulemaking revises coverage concerning Acquisition Planning, Required Sources of Supplies and Services, Market Research, and Small Business Programs, as well as affected parts to include Definitions of Words and Terms, Simplified Acquisition Procedures, Contract Financing, Solicitation Provisions and Contract Clauses, and Forms.
Effective November 17, 2022.
Mr. Bogdan Vaga, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 810 Vermont Avenue NW, Washington, DC 20420, (202) 894-0686. (This is not a toll-free telephone number.)
VA published a proposed rule in the
This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.
The VAAR has been revised to add new policy or regulatory requirements, to update existing policy, and to remove any redundant guidance where it may exist in affected parts, and to place guidance that is applicable only to VA's internal operating processes or procedures in the VA Acquisition Manual (VAAM).
This rule adopts as a final rule the proposed rule published in the
This rule makes one non-substantive change to the rule to provide clarity, eliminate confusion, and to ensure compliance with the Federal Acquisition Regulation (FAR). Specifically, in section 819.7002, Applicability, VA is revising the term “commercial acquisitions” as used in the section to reflect “commercial products or commercial services” in alignment with FAR final rule, Federal Acquisition Regulation: Revision of Definition of “Commercial Item”, RIN 9000-AN76, effective December 6, 2021.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess the 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 effects, and other advantages; distributive impacts; and equity). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
This final rule includes provisions constituting a revised collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). This rule also contains collections of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that are already approved by OMB. The collection of information for 48 CFR 819.704-70, 852.219-70, and 853.219(b) is currently approved by OMB and has been assigned OMB control number 2900-0741.
Separately, a revised collection of information associated with this rulemaking is contained in 48 CFR 852.207-70, Report of Employment Under Commercial Activities, under OMB control number 2900-0590. This final rule removes one of the existing information collection requirements associated with this action at 48 CFR 852.207-70 to reflect the discontinuation of 852.207-70, as well as the related prescriptions for the clause at 807.304-77 and 873.110, paragraph (f).
Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval, including all comments received on the proposed information collections and any changes made in response to comments. There were no public comments received on the proposed rule or on the collection of information. OMB has reviewed and has not approved the revisions and removal at this time. In accordance with 5 CFR part 1320, the revised information collection is not approved at this time. OMB has up to 30 days to approve the request after the final rule publishes.
If OMB does not approve the revised collection of information as requested, VA will immediately take action to reinstate the information collection or take such other action as is directed by OMB.
The Secretary hereby certifies that this final rule is not expected to have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612).
The overall impact of the final rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating processes or procedures. VA estimates no increased or decreased costs to small business entities. This rulemaking clarifies VA's policy regarding the contracting order of priority for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) as a result of the U.S. Supreme Court's decision in
This regulation seeks to simplify and streamline VA guidance regarding its small business program. The impact on small business overall is positive, as VA continues to implement its small business policies in accordance with legislative mandates pertaining to the Department of Veterans Affairs in 38 U.S.C. 8127-8128 to ensure that that small business owned and controlled by Veterans receive a fair share of contracting opportunities at the Department. VA's hierarchy of contracting preferences, established by law, mandates VA Vendor Information Pages (VIP)-listed SDVOSBs first, then VOSBs, prior to other small business preferences. While consistent with VA's legislation and mission to serve Veterans, this mandate necessarily makes achievement of other small business goals more challenging that fall in a statutorily based lower contracting order of priority,
This rulemaking does not change VA's overall policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply. However, VA has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The FRFA is summarized as follows:
a.
b.
c.
To determine the number of potential affected small businesses and other entities, VA examined the data in the Federal Procurement Data System (FPDS) to estimate the number of small business entities that will be affected by this rule. Based on preliminary data from Fiscal Year 2021, there were 80,148 SDVOSB coded contract actions, and 143,452 coded contract actions to VOSBs. In addition to specific SDVOSB/VOSB contract actions, in FY 2021 there were a total of 219,301 small business contract actions in FPDS.
This rule should help small businesses continue to receive a fair share of VA contracting dollars. VA exceeded its small business goal of 28.45% in Fiscal Year 2021, achieving 30.3%, valued at $10,307,742,213, while awards to SDVOSBs were valued at $8,144,793,570.
d.
e.
VA has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule would have no such effect on State, local, and tribal governments or on the private sector.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Government procurement.
Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements, Small business, Veterans.
Government procurement, Reporting and recordkeeping requirements.
Denis McDonough, Secretary of Veterans Affairs, approved this document on September 23, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons set forth in the preamble, VA amends 48 CFR chapter 8 as follows:
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
The additions read as follows:
38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
This part deals with prioritizing sources of supplies and services for use by the Government based on unique VA statutory programs, as well as requirements when using the General Services Administration (GSA) Federal Supply Schedules program including the GSA delegated VA Federal Supply Schedule program.
As used in this part—
(a)
(1)
(ii) Excess from other agencies (see FAR subpart 8.1).
(iii) Federal Prison Industries, Inc. (see 808.603). Prior to considering
(iv) Supplies that are on the Procurement List maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled, through the AbilityOne Program (FAR subpart 8.7). Supplies that are on the Procurement List but which do not meet the definition of a covered product in paragraph (a)(1)(iv)(A) of this section are only required to be procured from a mandatory source in accordance with FAR 8.002 if an award is not made to a VIP-listed and verified SDVOSB/VOSB after following the procedures set forth in subpart 819.70.
(A)
(
(
(
(
(
(B)
(C)
(D)
(
(
(v) Wholesale supply sources, such as stock programs of the General Services Administration (GSA) (see 41 CFR 101-26.3), the Defense Logistics Agency (see 41 CFR 101-26.6), the Department of Veterans Affairs (see 41 CFR 101-26.704), and military inventory control points.
(2)
(i)
(
(
(
(
(
(ii)
(iii)
(iv)
(A) Two or more SDVOSBs/VOSBs will submit offers; and
(B) Award can be made at a fair and reasonable price that offers best value to the United States.
(b)
(a)
(b)
(a) GSA has delegated authority to the VA to procure medical equipment, supplies, services and pharmaceuticals under the VA Federal Supply Schedule (FSS) program. The VA FSS program includes medical supplies in Federal Supply Classification (FSC) Groups 65 and 66 and services in FSC 621 for Professional and Allied Healthcare Staffing Services and Medical Laboratory Testing and Analysis Services.
(a) The Veterans First Contracting Program, implemented in subpart 819.70 pursuant to 38 U.S.C. 8127-8128, applies to BPAs, and orders under FAR subpart 8.4 and has precedence over other small business programs.
(b) Contracting officers, when establishing a BPA or placing an order against the FSS, shall ensure that priorities for veteran-owned small businesses are implemented within the VA hierarchy of small business program preferences in subpart 819.70. Specifically, the contracting officer will consider preferences for verified SDVOSBs first, then preferences for verified VOSBs. These priorities will be followed by preferences for other small businesses in accordance with 819.7005.
(c) If unable to satisfy requirements for supplies and services from the mandatory sources in 808.002 and 808.004-70, contracting officers may consider commercial sources in the open market (see FAR 8.004(b)) if an open market acquisition is most appropriate (see FAR 8.004) and a VA Rule of Two (see 802.101) determination is made (see subpart 819.70).
(d) When the servicing agency will award contracts under an interagency agreement on behalf of the VA, the contracting officer shall ensure the interagency acquisition complies with FAR subpart 17.5 and subpart 817.5 and includes terms requiring compliance with the VA Rule of Two (see 817.501).
To satisfy VA legislative requirements, contracting officers shall use the supplemental ordering procedures of this section when establishing a BPA or placing an order for supplies or services under this subpart as follows:
(a)
(1) The set-aside requirements as provided in 819.7006 and 819.7007 are mandatory.
(2) The requirements in FAR 8.405-1, 8.405-2, and 8.405-3 apply, except only quotes received from verified (
(3) The eligibility requirements of 819.7003, 819.7006, and 819.7007 apply, including the requirement for offerors to be VIP-listed at the time they submit offers/quotes as well as at the time awards are made.
(4) The contracting officer shall notify potential offerors of the unique VA verification requirements by including in the solicitation the applicable set-aside clause prescribed at 819.7011.
(b)
(c)
(a) When setting aside an order pursuant to 808.405-70(a), the applicable clause prescribed in 819.7011 for SDVOSB/VOSB set-asides shall be used.
(b) When an SDVOSB/VOSB set-aside is not feasible, the ordering activity shall use the clause at 852.208-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors—Orders or BPAs, for task orders, delivery orders, or BPAs using evaluation factors other than price alone.
(c) The ordering activity shall insert the clause at 852.208-71, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factor Commitments—Orders or BPAs, in request for quotes and resulting orders that include clause 852.208-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors—Orders or BPAs.
A waiver from Federal Prison Industries is not needed when comparable supplies and services are procured in accordance with subpart 819.70.
38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
The Veterans First Contracting Program in subpart 819.70 applies to contract actions under this part and takes precedence over other small
When performing market research, contracting officers shall review the Vendor Information Pages (VIP) database at
38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
(a) The Veterans First Contracting Program in subpart 819.70 applies to VA contracts, orders and BPAs under this part and has precedence over other small business programs referenced in FAR parts 13 and 19. For VA policy regarding mandatory Government sources, refer to 808.002.
(b) Notwithstanding FAR 13.003(b)(2), the contracting officer shall make an award utilizing the priorities for veteran-owned small businesses as implemented within the VA hierarchy of small business program preferences, the Veterans First Contracting Program in subpart 819.70. Specifically, the contracting officer shall consider preferences for verified service-disabled veteran-owned small businesses (SDVOSBs) first, then preferences for verified veteran-owned small businesses (VOSBs). These priorities will be followed by preferences for other small businesses in accordance with 819.7005.
(c) When using competitive procedures, the preference for restricting competition to verified SDVOSBs/VOSBs in accordance with paragraph (b) of this section is mandatory whenever market research provides a reasonable expectation of receiving two or more offers/quotes from eligible, capable and verified firms, and that an award can be made at a fair and reasonable price that offers best value to the Government.
(1) Pursuant to 38 U.S.C. 8127, contracts under this part shall be set-aside for SDVOSBs/VOSBs, in accordance with 819.7006 or 819.7007 when supported by market research. Contracting officers shall use the applicable set-aside clause prescribed at 819.7011.
(2) Pursuant to 38 U.S.C. 8128 and to the extent that market research does not support an SDVOSB or VOSB set-aside, the contracting officer shall include evaluation factors as prescribed at 815.304-70 and the evaluation criteria clause prescribed at 815.304-71(a).
(d) The SDVOSB and VOSB eligibility requirements in 819.7003 apply, including verification of the SDVOSB and VOSB status of an offeror, and other small business requirements in 13 CFR part 121 and 13 CFR 125.6 (
(a) When using competitive procedures under this part, the contracting officer shall use the Veterans First Contracting Program in subpart 819.70 and the guidance set forth in 813.003-70.
(b) Pursuant to 38 U.S.C 8127(b), contracting officers may use other than competitive procedures to enter into a contract with a verified SDVOSB or VOSB for procurements below the simplified acquisition threshold, as authorized by FAR 6.302-5 and 806.302-570(a) and (b).
(c) For procurements above the simplified acquisition threshold, pursuant to 38 U.S.C. 8127(c), contracting officers may also award a contract under this part to a firm verified under the Veterans First Contracting Program at subpart 819.70, using procedures other than competitive procedures, as authorized by FAR 6.302-5 and 806.302-570(a) and (c), and in accordance with 819.7008 and 819.7009.
15 U.S.C. 631,
(a) This part supplements FAR part 19 and implements the service-disabled veteran-owned small business (SDVOSB), veteran-owned small business (VOSB), and small business provisions of 38 U.S.C. 8127 and 8128, Executive Order 13360, and the Small Business Act (15 U.S.C. 631 et. seq.) as applied to the Department of Veterans Affairs (VA). This part also covers—
(1) Goals for using SDVOSBs and VOSBs;
(2) Priorities and preferences for using SDVOSBs/VOSBs;
(3) SDVOSB/VOSB eligibility and contract compliance;
(4) Setting aside acquisitions for SDVOSBs/VOSBs;
(5) Sole-source awards to SDVOSBs and VOSBs; and
(6) Evaluation preferences and contract clauses.
(a) It is VA policy that small business concerns owned and controlled by veterans shall have maximum practicable opportunity to participate in VA acquisitions, consistent the priorities and preferences prescribed under the Veterans First Contracting Program in subpart 819.70.
(1) To carry out this policy the Secretary shall establish annual SDVOSB and VOSB contracting goals.
(2) In support of these goals, each administration and staff office shall in turn establish annual goals for each subordinate contracting activity that present, for that activity, the maximum practicable opportunity for small business concerns, and particularly SDVOSBs/VOSBs, to participate in the performance of the activity's contracts and subcontracts.
(3) The attainment of these goals or the use of interagency acquisition vehicles does not limit the applicability of the Veterans First Contracting Program and priorities in subpart 819.70.
(c) In addition to the duties and responsibilities in FAR 19.201(c), the Executive Director, Office of Small and Disadvantaged Business Utilization (OSDBU), is responsible for overseeing implementation of the Veterans First Contracting Program under subpart 819.70.
(d) Each organization with contracting authority shall designate small business specialists/technical advisors in coordination with the OSDBU Director.
OSDBU is responsible for reviewing procurement strategies, establishing thresholds for such reviews and making recommendations to assist contracting officers in the implementation of this part. These responsibilities shall be conducted within the VA hierarchy of small business program preferences established by 38 U.S.C. 8127(h) (see subpart 819.70), which requires VA to consider preferences for VIP-listed SDVOSBs first, then preferences for VIP-listed VOSBs. Contracting officers shall use VA Form 2268, Small Business Program and Contract Bundling Review, to document actions and recommendations.
(a) 38 U.S.C. 8127 and 8128 require the VA to provide priority and establish special acquisition methods to increase contracting opportunities for SDVOSBs/VOSBs. These priorities and special acquisition methods are set forth in subpart 819.70 and shall be applied by contracting officers before other priorities and preferences in FAR 19.203.
(b) Pursuant to 38 U.S.C. 8128, contracting officers shall give priority to SDVOSBs/VOSBs if such business concern(s) also meet the requirements of that contracting preference. The requirement in this paragraph (b) applies even when using a contracting preference under FAR part 19 (for example, a women-owned small business set-aside).
All protests relating to size, status, and/or whether an SDVOSB or a VOSB is a “small business” are subject to the Small Business Administration (SBA) regulations at 13 CFR part 121 and must be filed in accordance with SBA guidelines at 13 CFR part 134 (see FAR subpart 19.3). Pursuant to Public Law 114-328, SBA will hear cases related to size and status, including ownership and control challenges under the VA Veterans First Contracting Program (see 38 U.S.C. 8127(f)(8)).
(a) The following principles apply to VA acquisitions under this subpart:
(1) Before setting aside or reserving an acquisition for small businesses under FAR subpart 19.5, contracting officers shall refer to 808.002 and 819.203-70 and subpart 819.70 for VA SDVOSB/VOSB priorities and preferences.
(2) Set-asides under the Veterans First Contracting Program in subpart 819.70 (see 819.7006 and 819.7007) have precedence over other small business set-asides authorized in FAR part 19, both above and below the simplified acquisition threshold (SAT). An SDVOSB/VOSB set-aside satisfies the legislative requirement to reserve actions below the SAT for small business.
(3) Pursuant to 38 U.S.C. 8127(d), set-asides for SDVOSBs/VOSBs are mandatory whenever a contracting officer has a reasonable expectation of receiving two or more offers/quotes from eligible, capable and verified firms, and that an award can be made at a fair and reasonable price that offers best value to the Government. (VA Rule of Two (see 802.101))
(b) The set-aside principles in this section apply to VA acquisitions even when a procuring activity is meeting its goals or is planning the use of an interagency agreement, Federal Supply Schedule, or a multiple award contract, including a Governmentwide contract vehicle.
(c) The requirements in this section apply to all VA acquisitions under this subpart, including reserves, orders, and BPAs under multiple award contracts, GSA Federal Supply Schedule contracts, and Multi-Agency Contracts (MACs) awarded by another agency. A set-aside restricted to SDVOSBs/VOSBs pursuant to subpart 819.70 satisfies competition requirements in FAR part 6, as well as fair opportunity requirements for orders under multiple-award contracts (see FAR 16.505(b)(2)(i)(F)).
(b) Contracting officers shall refer to 808.002 for the VA policy regarding priorities for use of SDVOSBs/VOSBs and mandatory Government sources.
(a) If the contracting officer receives no acceptable offers from responsible small business concerns, the set-aside shall be withdrawn and the requirement, if still valid, shall be resolicited on an unrestricted basis or, if permitted in the solicitation, the contracting officer will follow the tiered set-aside evaluation procedures in 819.7010, Tiered evaluation, and proceed to the next eligible tier in the evaluation process.
For contracts, orders, or BPAs to be issued as SDVOSB/VOSB reserve, tiered evaluation, set-aside, or sole source, see 819.7011. Also see subparts 808.4 and 815.3 and 819.203-70 for requirements and clauses applicable to VA small business set-asides.
(a) VA's current subcontracting goals, at a minimum, shall be inserted into all solicitations which contain FAR clause 52.219-9. To the maximum extent possible, the contracting officer shall ensure that individual subcontracting plans submitted by offerors subject to clause 852.219-70, VA Small Business Subcontracting Plan Minimum Requirements, include SDVOSB/VOSB goals that are commensurate with the annual VA SDVOSB/VOSB subcontracting goals (see 819.708).
(1) Only firms listed as verified on the Vendor Information Pages (VIP) database (see subpart 819.70) will count towards SDVOSB and VOSB goals.
(2) A contractor may reasonably rely on a subcontractor's status as shown in the VIP database as of the date of subcontract award, provided the contractor retains records of the results of the VIP database query.
(3) In furtherance of 38 U.S.C. 8127(a)(4), contractors shall submit subcontracting plan reports to OSDBU as set forth in clause 852.219-70, VA Small Business Subcontracting Plan Minimum Requirements. Unless otherwise directed by OSDBU, VA Form 0896A, Report of Subcontracts to Small and Veteran Owned Business, shall be used to submit the required information.
(b) Subcontracting goals should be expressed as a percentage of total dollars to be subcontracted unless otherwise stated in the solicitation.
(c) If an offeror proposes to use an SDVOSB/VOSB subcontractor for the purpose of receiving SDVOSB/VOSB evaluation factors credit pursuant to 808.405-70 or 815.304-70, the contracting officer shall ensure that the offeror, if awarded the contract, actually uses the proposed subcontractor or another SDVOSB/VOSB for that subcontract or for work of similar value, in accordance with clause 852.208-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors—Orders or BPAs, or 852.215-71, Evaluation Factor Commitments.
(d) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB or VOSB status is subject to debarment from contracting with the Department for a period of not less than five years. This includes the debarment of all principals in the business (see 809.406-270).
(b) The contracting officer shall insert clause 852.219-70, Small Business Subcontracting Plan Minimum Requirements, in solicitations and contracts that include FAR clause 52.219-9, Small Business Subcontracting Plan.
(e) The Small Business Administration (SBA) and the Department of Veterans Affairs (VA) have entered into a Partnership Agreement delegating SBA's contract execution and administrative functions to VA. Contracting officers shall follow the alternate procedures in the Partnership Agreement and this subpart, as applicable, to award an 8(a) contract. In the event the Partnership Agreement ceases to be in effect, contracting officers shall follow the procedures in FAR subpart 19.8.
(a) Before placing new requirements under the 8(a) program, the contracting officer must determine whether an SDVOSB/VOSB set-aside is mandated under the VA Rule of Two (see 802.101). If the determination does not result in an SDVOSB/VOSB set-aside, the contracting officer may consider the 8(a) program.
(b) The Partnership Agreement provides that SBA can release procurements already in the program whenever an SDVOSB or VOSB set-aside is feasible.
(c) When an 8(a) acquisition is processed pursuant to the Partnership Agreement, the contracting officer shall:
(1) For competitive solicitations and awards, use the clause at 852.219-71, VA Notification of Competition Limited to Eligible 8(a) Participants, substituting paragraph (c) of FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Participants, with paragraph (c) contained in 852.219-71.
(2) For noncompetitive solicitations and awards insert the clause at 852.219-72, Notification of Section 8(a) Direct Awards, instead of the prescribed FAR clauses at 52.219-11, Special 8(a) Contract Conditions; 52.219-12, Special 8(a) Subcontract Conditions; and 52.219-17, Section 8(a) Award.
(3) In all instances, contracting include the clause at FAR 52.219-14, Limitations on Subcontracting, or if applicable 52.219-33, Nonmanufacturer Rule.
(a) Sections 502 and 503 of Public Law 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, as amended (38 U.S.C. 8127- 8128), authorizes a VA specific program to increase contracting opportunities for eligible small business concerns owned and controlled by Veterans with service-connected disabilities and small business concerns owned and controlled by Veterans. Once ownership and control by these veterans is verified, these businesses are referred to as service-disabled veteran-owned small businesses (SDVOSBs) and veteran-owned small businesses (VOSBs) or collectively SDVOSB/VOSB for ease of reference.
(b) The program as implemented in this subpart shall be known as the Veterans First Contracting Program. The purpose of the program is to increase
(c) VA's program is codified at 38 U.S.C. 8127(b), (c), and (d), and provides the authority for VA contracting officers to make awards to SDVOSBs/VOSBs using restricted competition, as well as other than full and open competition (sole source), as set-forth in this subpart. Additionally, 38 U.S.C. 8128 provides the authority for VA to give SDVOSBs/VOSBs priority in the awarding of contracts and subcontracts using evaluation preferences.
(d) Contracting officers shall award contracts by restricting competition to eligible SDVOSBs/VOSBs as provided in 819.7006 and 819.7007. The contracting officer may use other preferences in this subpart as appropriate and in accordance with procuring activity guidelines.
(e) Pursuant to 38 U.S.C. 8128, contracting officers shall give priority to SDVOSBs/VOSBs if such business concern(s) also meet the requirements of that contracting preference. In carrying out this responsibility, contracting officers shall include the clauses prescribed at 808.405-570 and 815.304-71 in competitive solicitations and contracts that are not set-aside for SDVOSB/VOSB, including those under FAR part 12. The requirement in this paragraph (e) applies even when using a contracting preference under FAR part 19 (for example, a women-owned small business set-aside).
(f) The attainment of goals or the use of interagency vehicles or Governmentwide contract vehicles (
(g) Contracting officers shall ensure awards are made using the VA hierarchy of SDVOSB/VOSB preferences in this subpart. Specifically, the contracting officer will consider preferences for eligible SDVOSBs first, then preferences for other eligible VOSBs.
(h) When an offer of an SDVOSB/VOSB prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor(s) in the proposal, the contracting officer must consider the capabilities, past performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award.
Unless otherwise exempted by law, this subpart applies to VA contracting activities and contracts (see FAR 2.101) including BPAs and orders under FAR subpart 8.4 and acquisition of commercial products or commercial services under FAR part 12. In addition, this subpart applies to VA contractors, their subcontractors and to any Government entity that has a contract, agreement, or other arrangement with the VA to acquire goods and services on behalf of the VA (see 817.502). For applicability and VA policy regarding priorities for use of mandatory Government sources see 808.002.
(a) SDVOSB/VOSB size eligibility, challenges, and appeals are governed by the Small Business Administration (SBA) regulations at 13 CFR parts 121, 125, and 134, except where directed otherwise by this part or 38 CFR part 74.
(b) At the time of submission of offers/quotes, and at the time of award of any contract, the offeror must represent to the contracting officer that it is a—
(1) SDVOSB or VOSB eligible under this subpart;
(2) Small business concern under the North American Industry Classification System (NAICS) code assigned to the acquisition; and
(3) Listed as a verified SDVOSB/VOSB on the VA's Vendor Information Pages (VIP) at
(c) A joint venture may be considered eligible if it meets the requirements in 13 CFR part 125; and the joint venture is listed in the VIP database.
(d) To receive a benefit under the Veterans First Contacting Program, an otherwise eligible SDVOSB/VOSB must also meet SBA requirements at 13 CFR parts 121 and 125, including the nonmanufacturer rule requirements at 13 CFR 121.406(b) and limitations on subcontracting at 13 CFR 125.6. The nonmanufacturer rule (see 13 CFR 121.406) and the limitations on subcontracting requirements apply to all SDVOSB and VOSB set-aside and sole source contracts above the micro-purchase threshold. An offeror shall submit a certification of compliance to be considered eligible for any award under this part (see 819.7004).
(e) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment from contracting with the Department for a period of not less than five years. This includes the debarment of all principals in the business. See 809.406-270.
(a) A contract awarded under this subpart is subject to the SBA limitations on subcontracting requirements in 13 CFR 125.6, provided that—
(1) Only VIP-listed SDVOSBs are considered eligible and/or “similarly situated” under an SDVOSB sole source or set-aside.
(2) A VOSB is subject to the same limitations on subcontracting that apply to an SDVOSB.
(3) Any VIP-listed SDVOSB/VOSB is considered eligible and/or “similarly situated” under a VOSB sole source or set-aside.
(b) Pursuant to the authority of 38 U.S.C. 8127(k)(2), a contracting officer may award a contract under this subpart only after obtaining from the offeror a certification that the offeror will comply with the limitations on subcontracting requirement as provided in the solicitation and which shall be included in the resultant contract (see 819.7011).
(1) The formal certification must be completed, signed and returned with the offeror's bid, quotation, or proposal.
(2) The Government will not consider offers for award from offerors that do not provide the certification with their bid, quotation, or proposal, and all such responses will be deemed ineligible for evaluation and award.
(c) An otherwise eligible first tier subcontractor must meet the NAICS size standard assigned by the prime contractor and be listed in VIP to count as similarly situated. Any work that a first tier VIP-listed subcontractor further subcontracts will count towards the percent of subcontract amount that cannot be exceeded.
(d) An SDVOSB/VOSB awarded a contract on the basis of a set-aside, sole source, or an evaluation preference is
(1) The end of the base term, and then by the end of each subsequent option period; or, by the end of the performance period for each order issued under the contract, at the contracting officer's discretion; and
(2) For an order set aside for SDVOSB/VOSB as described in 808.405 and FAR 16.505(b)(2)(i)(F), or for an order issued directly to an SDVOSB/VOSB in accordance with FAR 19.504(c)(1)(ii), by the end of the performance period for the order.
(e) The contracting officer may also, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance of the contract, and upon completion of a contract if the information regarding such compliance is not already available to the contracting officer. Evidence of compliance includes, but is not limited to, invoices, copies of subcontracts, or a list of the value of tasks performed.
(f) Pursuant to Public Law 116-183, the Office of the Small and Disadvantaged Business Utilization (OSDBU) and Chief Acquisition Officer (CAO), will implement a process to monitor compliance with the requirement in this section. The OSDBU and CAO shall jointly refer any violations or suspected violations to the VA Office of Inspector General. This referral obligation does not relieve contracting officers of their obligation to report suspected violations of law to the Office of the Inspector General (OIG).
(1) If the Secretary or designee determines in consultation with the Inspector General that an SDVOSB/VOSB awarded a contract pursuant to 38 U.S.C. 8127 did not act in good faith with respect to the requirements described in 819.7003(d), such SDVOSB/VOSB shall be subject to any or all of the following—
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15 U.S.C. 645(g)(1)); and
(iii) Prosecution for violating 18 U.S.C. 1001.
(2) The Inspector General shall report to the Congress annually on the number of referred violations and suspected violations, and the disposition of such violations, including the number of small business concerns suspended or debarred from federal contracting or referred for Department of Justice prosecution.
(a) In determining the acquisition strategy applicable to a procurement requirement not otherwise covered under 808.002, the contracting officer shall observe the order of contracting preferences in 38 U.S.C. 8127(h).
(b) Specifically, preferences for awarding contracts to small business concerns shall be applied in the following order of priority:
(1) Contracts awarded to small business concerns owned and controlled by Veterans with service-connected disabilities as provided in this subpart.
(2) Contracts to small business concerns owned and controlled by Veterans that are not covered by paragraph (b)(1) of this section as provided in this subpart.
(3) Contracts awarded pursuant to—
(i) Section 8(a) of the Small Business Act (15 U.S.C. 637(a) as provided in FAR subpart 19.8; or
(ii) Section 31 of the Small Business Act (15 U.S.C. 657a) as provided in FAR subpart 19.13.
(4) Contracts awarded pursuant to any other small business set aside contracting preference, with due deference to the priority for awarding to women-owned small businesses as provided in FAR 19.203(b) through (e) and FAR subpart 19.15.
(a) The contracting officer shall consider SDVOSB set-asides before considering VOSB set-asides. Except as authorized by 808.002, 813.106, 819.7007, and 819.7008, the contracting officer shall set-aside a contract action exceeding the micro-purchase threshold for competition restricted to VIP-listed SDVOSB upon a reasonable expectation based on market research that—
(1) Offers/quotations will be received from two or more eligible VIP-listed SDVOSBs; and
(2) Award can be made at a fair and reasonable price that offers the best value to the Government.
(b) When conducting SDVOSB set-asides, the contracting officer shall ensure that—
(1) Offerors are registered and verified as eligible in the VIP database at the time of submission of offers and at time of award; and
(2) Offerors affirmatively represent their SDVOSB and small business status based on the size standard corresponding to the North American Industrial Classification System (NAICS) code assigned to the solicitation/contract, as set forth in 819.7003(b) or (c).
(c) If the contracting officer receives only one acceptable offer at a fair and reasonable price from an eligible VIP-listed SDVOSB, the contracting officer may make an award to that concern. If the contracting officer receives no acceptable offers from eligible SDVOSBs, the set-aside shall be withdrawn and the requirement, if still valid, set aside for VOSB competition if warranted or otherwise procured using the most appropriate strategy based on the results of market research.
(a) The contracting officer shall consider SDVOSB set-asides before considering VOSB set-asides. Except as authorized by 808.002, 813.106, 819.7007, and 819.7008, the contracting officer shall set aside a contract action exceeding the micro-purchase threshold for competition restricted to VIP-listed VOSBs upon a reasonable expectation based on market research that—
(1) Offers/quotations will be received from two or more VIP-listed VOSBs; and
(2) Award can be made at a fair and reasonable price that offers the best value to the Government.
(b) When conducting VOSB set-asides, the contracting officer shall ensure that—
(1) Offerors are registered and verified as eligible in the VIP database at the time of submission of offers and at time of award; and
(2) Offerors affirmatively represent their SDVOSB/VOSB and small business status based on the size standard corresponding to the NAICS code assigned to the solicitation/contract (see 819.7003(b) and (c)).
(c) If the contracting officer receives only one acceptable offer at a fair and reasonable price from an eligible VIP-listed VOSB in response to a VOSB set-aside, the contracting officer may make an award to that concern. If the contracting officer decides not to make an award to the single acceptable offer received, or if the contracting officer receives no acceptable offers from eligible VOSBs, the set-aside shall be withdrawn and the requirement, if still valid, set aside for other small business programs in accordance with 819.7005 or otherwise procured using the most appropriate strategy based on the results of market research.
(a) A contracting officer may award a contract to a VIP-listed service-disabled veteran-owned small business (SDVOSB) using other than competitive procedures provided—
(1) The anticipated award price of the contract (including options) will not exceed $5 million;
(2) The requirement is synopsized and the required justification pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part 5;
(3) The SDVOSB has been determined to be a responsible contractor with respect to performance; and
(4) In the estimation of the contracting officer contract award can be made at a fair and reasonable price that offers best value to the Government.
(b) The contracting officer's determination to make a sole source award is a business decision wholly within the discretion of the contracting officer. To ensure that opportunities are available to the broadest number of SDVOSBs, this authority is to be used only when in the best interest of the Government.
(c) A determination that only one SDVOSB can meet the requirement is not required. However, in accordance with FAR 6.302-5(c)(2)(ii), contracts awarded using this authority shall be supported by a written justification and approval described in FAR 6.303 and 6.304, as applicable.
(d) When conducting a SDVOSB sole source acquisition, the contracting officer shall ensure the business meets eligibility requirements in 819.7003.
(e) A procurement requirement estimated to exceed the legislative threshold of $5 million shall not be split or subdivided to permit the use of this SDVOSB sole source authority.
(a) A contracting officer may award a contract to a VIP-listed veteran-owned small business (VOSB) using other than competitive procedures provided—
(1) The anticipated award price of the contract (including options) will not exceed $5 million;
(2) The requirement is synopsized and the required justification pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part 5;
(3) The VOSB has been determined to be a responsible contractor with respect to performance;
(4) In the estimation of the contracting officer contract award can be made at a fair and reasonable price that offers best value to the Government; and
(5) No responsible SDVOSB has been identified.
(b) The contracting officer's determination to make a sole source award is a business decision wholly within the discretion of the contracting officer. To ensure that opportunities are available to the broadest number of VOSBs, this authority is to be used only when in the best interest of the Government.
(c) A determination that only one VOSB can meet the requirement is not required. However, in accordance with FAR 6.302-5(c)(2)(ii), contracts awarded using this authority shall be supported by a written justification and approval described in FAR 6.303 and 6.304, as applicable.
(d) When conducting a VOSB sole source acquisition, the contracting officer shall ensure the business meets eligibility requirements in 819.7003.
(e) A procurement requirement estimated to exceed the legislative threshold of $5 million shall not be split or subdivided to permit the use of this VOSB sole source authority.
(a) Pursuant to the authority of 38 U.S.C. 8127 and under limited circumstances as set forth in this section, contracting officers may consider using a tiered set-aside evaluation approach to minimize delays in the re-solicitation process.
(b) Tiered evaluation of offers is a procedure that may be used in competitive negotiated acquisitions, including construction and acquisitions for commercial products and commercial services when the VA Rule of Two (see 802.101) determination indicates a set-aside is required, but other circumstances preclude a confident conclusion that an award can be made at the SDVOSB or VOSB tier. The contracting officer—
(1) Solicits and receives offers from targeted tiers of small business groups, with SDVOSB as the first tier and VOSB as the second tier;
(2) Establishes a tiered order of priority for evaluating offers that is specified in the solicitation; and
(3) If no award can be made at the first tier, evaluates offers at the next lower tier, until award can be made.
(c) Market research, which shall be conducted and documented in advance of issuing the solicitation, will inform which of the following types of tiers will be included in the solicitation:
(1) Tiered evaluations limited to SDVOSBs or VOSBs;
(2) Tiered evaluations including 8(a) and HUBZone small businesses; or
(3) Tiered evaluations including all other small business concerns.
(d) The tiered order of priority shall be consistent with 819.7005. Consideration shall be given to HUBZone and 8(a) small business concerns before evaluating offers from other small business concerns.
(a) The contracting officer shall insert clause 852.219-73, VA Notice of Total Set-Aside for Verified Service-Disabled Veteran-Owned Small Businesses, or clause 852.219-74, VA Notice of Total Set-Aside for Verified Veteran-Owned Small Businesses, as applicable, in solicitations, orders and contracts that are set-aside, reserved, evaluated or awarded under this subpart. This includes sole source awards as well as multiple-award contracts when orders may be set aside for SDVOSBs/VOSBs as described in 808.405 and FAR 19.504(c)(1)(ii).
(b) The contracting officer shall insert the clause at 852.219-75, VA Notice of Limitations on Subcontracting—Certificate of Compliance for Services and Construction, in solicitations and contracts for services and construction, including BPAs, BOAs, and orders, for acquisitions that are evaluated, set-aside, or awarded on a sole source basis under this subpart. This includes orders awarded under multiple-award contracts to SDVOSBs/VOSBs.
(c) The contracting officer shall insert the clause at 852.219-76, VA Notice of Limitations on Subcontracting—Certificate of Compliance for Supplies and Products, in solicitations and contracts for supplies or products, including BPAs, BOAs, and orders, for acquisitions that are to be awarded on the basis of an SDVOSB/VOSB set-aside, sole source, or an evaluation preference under this subpart. This includes orders awarded under multiple-award contracts to SDVOSBs/VOSBs. The contracting officer shall tailor clause 852.219-76, and paragraph (a)(2)(iii) of the clause, as appropriate.
40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
38 U.S.C. 8127-8128 and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
As prescribed in 808.405-570, insert the following clause:
(a) In an effort to increase contracting opportunities for Veterans, depending on the evaluation factors included in the solicitation, VA will evaluate responses received based on the schedule Contractor's VIP-verified service-disabled veteran-owned small business/veteran-owned small business (SDVOSB/VOSB) status; and/or their proposed use of VIP-listed SDVOSB/VOSB as subcontractors or teaming partners.
(b) To receive credit under this clause a contractor or subcontractor must be listed, at time of submission of offer/quotes and at time of award, as an eligible SDVOSB/VOSB in the Vendor Information Pages (VIP) database at
(c) A VIP-listed SDVOSB schedule holder will receive full credit, and a VIP-listed VOSB schedule holder will receive partial credit for the SDVOSB/VOSB status evaluation factor.
(d) Offerors other than SDVOSBs or VOSBs proposing to use VIP-listed SDVOSBs/VOSBs as subcontractors/teaming partners, will receive some consideration under this evaluation factor. To receive consideration, offerors must provide in their proposals:
(1) The name(s) and contact information of the VIP-listed SDVOSB(s)/VOSB(s) with whom they intend to team or subcontract.
(2) A brief description of the proposed team or subcontractor(s) arrangement.
(3) The approximate dollar value of the proposed teaming arrangements or subcontract(s).
(4) Evidence of teaming partner/subcontractor's VIP database registration and verification.
(e) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.
As prescribed in 808.405-570, insert the following clause:
(a) The Contractor agrees, if selected on the basis of service-disabled veteran-owned small business (SDVOSB) or veteran-owned small business (VOSB) status, to comply with the eligibility requirements in subpart 819.70, including the limitation on subcontracting requirements at 13 CFR 125.6.
(b) The Contractor agrees, if selected for award on the basis of teaming/subcontracting in accordance with 852.208-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors—Orders and BPAs, to use the evaluated firm(s) as proposed or if approved by contracting officer to substitute one or more VIP-verified SDVOSB/VOSB for work of the same or similar value.
(c) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.
As prescribed in 819.708, insert the following clause:
(a) This clause does not apply to small business concerns.
(b) If the offeror is required to submit an individual subcontracting plan, the minimum goals for award of subcontracts to VA verified service-disabled veteran-owned small business and veteran-owned small business SDVOSB/VOSB shall be at least commensurate with the Department's annual SDVOSB/VOSB subcontracting goals.
(c) For a commercial plan, the minimum goals for award of subcontracts to SDVOSB/VOSB shall be at least commensurate with the Department's annual service-disabled veteran-owned small business and veteran-owned small business subcontracting goals for the total value of projected subcontracts to support the sales for the commercial plan.
(d) To be credited toward goal achievements, SDVOSB/VOSBs must be verified as eligible in the VA's Vendor Information Pages (VIP) database at
(e) The Contractor shall annually submit a listing of SDVOSB/VOSB (for which credit toward goal achievement is to be applied) for review by personnel in the Office of Small and Disadvantaged Business Utilization. Use VA Form 0896A, Report of Subcontracts to Small and Veteran-Owned Business.
(f) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.
As prescribed in 819.811-370, when FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Participants, is utilized, use this clause in conjunction with the FAR clause.
Substitute paragraph (c) in FAR Clause 52.219-18 as follows:
(c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror. Although SBA is not identified as such in the award form, SBA is still the Prime Contractor. Contractor shall comply with the limitations on subcontracting as provided in 13 CFR 125.6 and other 8(a) program requirements, as set forth in 13 CFR part 124.
As prescribed in 819.811-370, paragraph (a), insert the following clause:
(a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in the SBA's 8(a) Program. By submission of its offer, the Offeror represents that it is in good standing and that it meets all of the criteria for participation in the program in accordance with 13 CFR part 124.
(b) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror. Although SBA is not identified as such in the award form, SBA is still the Prime Contractor.
(c) This contract is issued as a direct award between the contracting activity and the 8(a) Contractor pursuant to the Partnership Agreement (PA) between the Small Business Administration (SBA) and the Department of Veterans Affairs.
(d) SBA retains responsibility for 8(a) certification, 8(a) eligibility determinations
(e) The contracting activity is responsible for administering the contract and taking any action on behalf of the Government under the terms and conditions of the contract. However, the contracting activity shall give advance notice to the SBA before it issues a final notice terminating performance, either in whole or in part, under the contract. The contracting activity shall obtain SBA's approval prior to processing any novation agreement(s). The contracting activity may assign contract administration functions to a contract administration office.
(f) The Contractor agrees:
(1) To notify the Contracting Officer, simultaneous with its notification to SBA (as required by SBA's 8(a) regulations), when the owner or owners upon whom 8(a) eligibility is based plan to relinquish ownership or control of the concern.
(2) Consistent with 15 U.S.C. 637(a)(21), transfer of ownership or control shall result in termination of the contract for convenience, unless SBA waives the requirement for termination prior to the actual relinquishing of ownership and control.
(3) It will adhere to the requirements of 52.219-14, Limitations of Subcontracting and other requirements in 13 CFR part 124 and 13 CFR 125.6, as applicable
(g) Any proposed joint venture involving an 8(a) Participant must be approved by SBA before contracts are awarded.
As prescribed in 819.7011, insert the following clause:
(a)
(1) Means a small business concern—
(i) Not less than 51 percent of which is owned by one or more service-disabled Veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled Veterans or eligible surviving spouses (see VAAR 802.201, Surviving Spouse definition);
(ii) The management and daily business operations of which are controlled by one or more service-disabled Veterans (or eligible surviving spouses) or, in the case of a service-disabled Veteran with permanent and severe disability, the spouse or permanent caregiver of such Veteran;
(iii) The business meets Federal small business size standards for the applicable North American Industry Classification System (NAICS) code identified in the solicitation document;
(iv) The business has been verified for ownership and control pursuant to 38 CFR part 74 and is listed in VA's Vendor Information Pages (VIP) database at
(v) The business will comply with VAAR subpart 819.70 and Small Business Administration (SBA) regulations regarding small business size and government contracting programs at 13 CFR parts 121 and 125, provided that any reference therein to a service-disabled veteran-owned small business concern or SDVO SBC, is to be construed to apply to a VA verified and VIP-listed SDVOSB, unless otherwise stated in this clause.
(2) The term “Service-disabled Veteran” means a Veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).
(3) The term “small business concern” has the meaning given that term under section 3 of the Small Business Act (15 U.S.C. 632).
(4) The term “small business concern owned and controlled by Veterans with service-connected disabilities” has the meaning given the term “
(b)
(2) Any award resulting from this solicitation shall be made to a VIP-listed SDVOSB who is eligible at the time of submission of offer(s) and at the time of award.
(3) The requirements in this clause apply to any contract, order or subcontract where the firm receives a benefit or preference from its designation as an SDVOSB, including set-asides, sole source awards, and evaluation preferences.
(c)
(d)
(1)
(2)
(ii) In the case of a contract for supplies from a non-manufacturer, the SDVOSB prime contractor will supply the product of a domestic small business manufacturer or processor, unless a waiver as described in 13 CFR 121.406(b)(5) has been granted. Refer to 13 CRF 125.6(a)(2)(ii) for guidance pertaining to multiple item procurements.
(3)
(4)
(5)
(e)
__By the end of the base term of the contract or order, and then by the end of each subsequent option period; or
__By the end of the performance period for each order issued under the contract.
(f)
(g)
(h)
As prescribed in 819.7011, insert the following clause:
(a)
(1) Means a small business concern—
(i) Not less than 51 percent of which is owned by one or more Veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more Veteran(s);
(ii) The management and daily business operations of which are controlled by one or more Veteran(s);
(iii) The business meets Federal small business size standards for the applicable North American Industry Classification System (NAICS) code identified in the solicitation document;
(iv) The business has been verified for ownership and control pursuant to 38 CFR part 74 and is listed in VA's Vendor Information Pages (VIP) database at:
(v) The business will comply with VAAR subpart 819.70 and Small Business Administration (SBA) regulations regarding small business size and government contracting programs at 13 CFR parts 121 and 125, provided that any requirement therein that applies to a service-disabled veteran-owned small business concern or SDVO SBC, is to be construed to also apply to a VA verified and VIP-listed VOSB, unless otherwise stated in this clause.
(vi) The term VOSB includes VIP-listed service-disabled veteran-owned small businesses (SDVOSB).
(2) “
(3) The term “
(4) The term “
(b)
(2) Any award resulting from this solicitation shall be made only to a VIP-listed VOSB who is eligible at the time of submission of offer(s) and at time of award.
(3) The requirements in this clause apply to any contract, order or subcontract where the firm receives a benefit or preference from its designation as a VOSB, including set-asides, sole source awards, and evaluation preferences.
(c)
(d)
(1)
(2)
(ii) In the case of a contract for supplies from a non-manufacturer, the VOSB prime contractor will supply the product of a domestic small business manufacturer or processor, unless a waiver as described in 13 CFR 121.406(b)(5) has been granted. Refer to 13 CFR 125.6(a)(2)(ii) for guidance pertaining to multiple item procurements.
(3)
(4)
(5)
(e)
__By the end of the base term of the contract or order, and then by the end of each subsequent option period; or
__By the end of the performance period for each order issued under the contract.
(f)
(g)
(h)
As prescribed in 819.7011(b), insert the following clause:
(a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies that—
(1) If awarded a contract (see FAR 2.101 definition), it will comply with the limitations on subcontracting requirement as provided in the solicitation and the resultant contract, as follows: [
(i) □
(ii)
(iii)
(2) The offeror acknowledges that this certification concerns a matter within the jurisdiction of an Agency of the United States. The offeror further acknowledges that this certification is subject to Title 18, United States Code, Section 1001, and, as such, a false, fictitious, or fraudulent certification may render the offeror subject to criminal, civil, or administrative penalties, including prosecution.
(3) If VA determines that an SDVOSB/VOSB awarded a contract pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/VOSB shall be subject to any or all of the following:
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15 U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(b) The offeror represents and understands that by submission of its offer and award of a contract it may be required to provide copies of documents or records to VA that VA may review to determine whether the offeror complied with the limitations on subcontracting requirement specified in the contract. Contracting officers may, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance and upon completion of a contract if the information regarding such compliance is not already available to the contracting officer. Evidence of compliance includes, but is not limited to, invoices, copies of subcontracts, or a list of the value of tasks performed.
(c) The offeror further agrees to cooperate fully and make available any documents or records as may be required to enable VA to determine compliance with the limitations on subcontracting requirement. The offeror understands that failure to provide documents as requested by VA may result in remedial action as the Government deems appropriate.
(d) Offeror completed certification/fill-in required. The formal certification must be completed, signed and returned with the offeror's bid, quotation, or proposal. The Government will not consider offers for award from offerors that do not provide the certification, and all such responses will be deemed ineligible for evaluation and award.
I hereby certify that if awarded the contract, [
As prescribed in 819.7011(c), insert the following clause. The contracting officer shall tailor the clause in paragraph (a)(2)(iii) as appropriate:
(a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies that—
(1) If awarded a contract (see FAR 2.101 definition), it will comply with the limitations on subcontracting requirement as provided in the solicitation and the resultant contract, as follows: [
(i) □ In the case of a contract for supplies or products (other than from a non-manufacturer of such supplies), it will not pay more than 50% of the amount paid by the government to it to firms that are not VIP-listed SDVOSBs as set forth in 852.219-73 or VOSBs as set forth in 852.219-74. Any work that a similarly situated VIP-listed subcontractor further subcontracts will count towards the 50% subcontract amount that cannot be exceeded. Cost of materials are excluded and not considered to be subcontracted.
(ii) □ In the case of a contract for supplies from a nonmanufacturer, it will supply the product of a domestic small business manufacturer or processor, unless a waiver as described in 13 CFR 121.406(b)(5) is granted. The offeror understands that, as provided in 13 CFR 121.406(b)(7), such a waiver has no effect on requirements external to the Small Business Act, such as the Buy American Act or the Trade Agreements Act.
(2) Manufacturer or nonmanufacturer representation and certification. [
(i) □
(ii) □
□ The offeror certifies that it does not exceed 500 employees (or 150 employees for the Information Technology Value Added Reseller exception to NAICS code 541519, which is found at 13 CFR 121.201, footnote 18).
□ The offeror certifies that it is primarily engaged in the retail or wholesale trade and normally sells the type of item being supplied.
□ The offeror certifies that it will take ownership or possession of the item(s) with its personnel, equipment, or facilities in a manner consistent with industry practice.
(iii) □ The offeror certifies that it will supply the end item of a small business manufacturer, processor, or producer made in the United States, unless a waiver as provided in 13 CFR 121.406(b)(5) has been issued by SBA. [
or [
□ If this is a multiple item acquisition, the offeror certifies that at least 50% of the estimated contract value is composed of items that are manufactured by small business concerns. [
(3) The offeror acknowledges that this certification concerns a matter within the jurisdiction of an Agency of the United States. The offeror further acknowledges that this certification is subject to Title 18, United States Code, Section 1001, and, as such, a false, fictitious, or fraudulent certification may render the offeror subject to criminal, civil, or administrative penalties, including prosecution.
(4) If VA determines that an SDVOSB/VOSB awarded a contract pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/VOSB shall be subject to any or all of the following:
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15 U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(b) The offeror represents and understands that by submission of its offer and award of a contract it may be required to provide copies of documents or records to VA that VA may review to determine whether the offeror complied with the limitations on subcontracting requirement specified in the contract or to determine whether the offeror qualifies as a manufacturer or nonmanufacturer in compliance with the limitations on subcontracting requirement. Contracting officers may, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance and upon completion of a contract if the information regarding such compliance is not already available to the contracting officer. Evidence of compliance includes, but is not limited to, invoices, copies of subcontracts, or a list of the value of tasks performed.
(c) The offeror further agrees to cooperate fully and make available any documents or records as may be required to enable VA to determine compliance. The offeror understands that failure to provide documents as requested by VA may result in remedial action as the Government deems appropriate.
(d) Offeror completed certification/fill-in required. The formal certification must be completed, signed and returned with the offeror's bid, quotation, or proposal. The Government will not consider offers for award from offerors that do not provide the certification, and all such responses will be deemed ineligible for evaluation and award.
I hereby certify that if awarded the contract, [
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
(a)
(b)
(c)
Securities and Exchange Commission.
Proposed rules; resubmission of comment letters; reopening of comment periods.
Due to a technological error, a number of public comments submitted through the Securities and Exchange Commission's (“Commission” or “SEC”) internet comment form were not received by the Commission. The majority of the affected comments were submitted in August 2022; however, the technological error is known to have occurred as early as June 2021. All commenters who submitted a public comment to one of the affected comment files through the internet comment form between June 2021 and August 2022 are advised to check the relevant comment file posted on
The comment periods for the Rulemaking Releases, published at 86 FR 69802 (Dec. 8, 2021) (reopened at 87 FR 11659 (March 2, 2022)), 87 FR 6652 (Feb. 4, 2022), 87 FR 7248 (Feb. 8, 2022), 87 FR 8443 (Feb. 15, 2022), 87 FR 14950 (Mar. 16, 2022), 87 FR 16590 (Mar. 23, 2022), 87 FR 16886 (Mar. 24, 2022) (reopened at 87 FR 29059 (May 12, 2022)), 87 FR 21334 (Apr. 11, 2022) (reopened at 87 FR 29059 (May 12, 2022)), 87 FR 29458 (May 13, 2022), 87 FR 36594 (June 17, 2022), 87 FR 36654 (June 17, 2022), and 87 FR 37254 (June 22, 2022), are reopened until November 1, 2022.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
J. Matthew DeLesDernier, Deputy Secretary, Office of the Secretary, at (202) 551-5400, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090, or by email at
Due to a technological error, a number of public comments submitted through the Commission's internet form for the submission of comment letters
To further ensure that interested persons, including any affected commenters, have the opportunity to comment on the releases or to resubmit comments, the Commission is reopening the comment periods for the following Rulemaking Releases, which SEC staff
The technological error also may have affected certain comments with respect to the following SRO matters. The Commission will evaluate any comments resubmitted with respect to these matters and consider whether further action is warranted.
By the Commission.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Housing and Urban Development (HUD).
Proposed rule.
Section 2145 of the Housing and Economic Recovery Act of 2008 amended the maximum loan limits for manufactured home loans insured under Title I of the National Housing Act and required regulations to implement future indexing of the loan limit amounts for manufactured homes originated under the Manufactured Home Loan program and the Property Improvement Loan program. This proposed rule would establish indexing methodologies using data from the United States Census Bureau to annually calculate the loan limits for Manufactured Home Loans, Manufactured Home Lot Loans, and Manufactured Home and Lot Combination Loans (“Combination Loans”) insured under Title I of the National Housing Act for the Manufactured Home Loan program.
HUD invites interested persons to submit comments to the Office of the General Counsel, Regulations Division, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Communications should refer to the above docket number and title and should contain the information specified in the “Request for Comments” section. There are two methods for submitting public comments.
1.
2.
To receive consideration as public comments, comments must be submitted using one of the two methods specified above. Again, all submissions must refer to the docket number and title of the notice.
Kevin Stevens, Department of Housing and Urban Development, 451 7th St SW, Room 9266, Washington, DC 20410-4000; telephone number 202-402-2378 (this is not a toll-free number). Individuals can dial 7-1-1 to access the Telecommunications Relay Service (TRS), which permits users to make text-based calls, including Text Telephone (TTY) and Speech to Speech (STS) calls.
Title I of the National Housing Act authorizes the Secretary of HUD to insure, through the Federal Housing Administration (FHA), loans made by FHA-approved lenders to eligible borrowers to finance the purchase, refinance, or improvement of a manufactured home, with or without the lot. HUD insures these loans under HUD's Property Improvement Loan program and HUD's Manufactured Home Loan program. FHA insures the lender against loss if the borrower defaults. A Title I Manufactured Home Loan may be used for the purchase or refinancing of a manufactured home, a lot on which to place a manufactured home, or a manufactured home and lot in combination. The manufactured home must be used as the principal residence of the borrower. Applicable loan limits and requirements are codified in 24 CFR part 201.
Section 2117 of the Housing and Economic Recovery Act of 2008 (HERA)
In compliance with HERA, on March 3, 2009, HUD published Title I Letter TI-480
HUD has developed preliminary indexes on which future loan limits could be annually adjusted. This methodology uses Census Bureau data, as required by HERA. The indexes for Title I unit-only loan limits would rely on the Census Bureau's Manufactured Housing Survey, which collects manufactured home sale prices for units that are sold (or intended to be sold) for residential use. At this time, it does not collect prices for land or lot sales or costs for home improvements, as it relates to manufactured housing. However, the Census Bureau's New Residential Sales data do provide estimates of the median price of newly constructed single-family homes, which includes the value of the lot. For compliance with the HERA statute, the index for Title I Lot Loan limits would be based on Census Bureau data on prices for newly constructed single-family homes with land.
As required by HERA, this proposed rule would update the loan limits in § 201.10 to establish an index for which future loan limits would be revised through notice. HUD is also proposing to amend the definition of “manufactured home” in § 201.2 to conform to the loan limit change. HUD proposes to index loan limits based on sale prices, unit sizes, and property data collected by the Census Bureau. HUD seeks comments on the proposed indexes and methodology for the different loan types. Further, commenters are invited to suggest whether the methodology should include an additional or alternative index for specific loans and how they could better represent adjustment in the loan limits.
HUD proposes to establish separate indexing methodologies to annually calculate future loan limits for manufactured home loans, manufactured home lot loans, and manufactured home and lot combination loans under the Manufactured Home Loan program. HUD assigns “Index 100” to the loan limit amounts enacted by HERA, as shown in Table 3 of this preamble.
First, the proposed rule would create a dual index based on purchase prices of manufactured homes, which are collected by the Census Bureau. The dual index would distinguish purchase prices based on the number of sections that make up a home. An index for single-section manufactured homes would use only single-section home sale data. A separate index for double- and multi-section manufactured homes would use only double-section home sale data.
HUD proposes to adjust loan limits for single-section and double or multi-section manufactured home loans annually based on changes to indexes for the average price of single-section and double-section manufactured homes, respectively. To determine each index, HUD proposes to use the average price data for the most recent 12 months available at the time HUD calculates the adjustment, weighted according to the number of manufactured units shipped during that same period. Each index would be calculated separately, using shipping and price data for single-section units for the single-section index and shipping and price data for double-section units for the double- or greater section index. Consistent with HERA, HUD would not decrease loan limits even if an annual index reflects a decline.
Second, HUD proposes creating an index for Manufactured Home Lot Loans based on median home prices in Census Bureau's New Residential Sales data.
Finally, the loan limit for manufactured home and lot Combination Loans would be determined by adding the manufactured home lot loan limit to either the single- or double-section loan limit, depending on the home.
HUD's proposed indexes are demonstrated in table 2 of this preamble:
Table 3 below shows examples of the loan limits, based on recent data from Census Bureau.
As discussed in the proposed § 201.10(h), HUD would annually adjust future loan limits using the above methodology and post new loan limits, including an explanation of the calculation by notice, such as through a Title I letter and on
This proposed rule does not propose an index for Manufactured Home Improvement Loans, which are insured under regulations for the Property Improvement Loan program. While HERA authorized adjustments to the limit of loans that finance improvements to manufactured homes under the Property Improvement Loan program, that authorization was not extended to site-built condominiums, townhomes, or detached dwellings. HUD does not believe any existing Census Bureau data fully reflect changes in the manufactured housing property improvement loan market. Therefore, the implementation of HERA regarding Manufactured Home Improvement Loans would be subject to inaccuracy. Additionally, setting different loan limits for only this subset of the broader Property Improvement Loan program would cause complication, as the program and market for property improvements makes no other differentiation between improvements to manufactured homes vs. non manufactured homes. Therefore, HUD intends to publish an advanced notice of proposed rulemaking requesting public comment seeking input on implementation of a Property Improvement Loan index for manufactured homes.
Because the Manufactured Home Improvement Loan program is such a small subset of the overall Property Improvement Loan program, HUD believes that this delay in the implementation of HERA to Manufactured Home Improvement Loans would have minimal, if any, effect on the Property Improvement Loan program. However, HUD seeks comment on the impact of delaying increases to the loan limit for Manufactured Home Improvement Loans.
Pursuant to Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive
This proposed rule has been determined to be a “significant regulatory action,” as defined in section 3(f) of the order, but not economically significant under section 3(f)(1) of the order. The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at 202-402-3055 (this is not a toll-free number). Individuals can dial 7-1-1 to access the Telecommunications Relay Service (TRS), which permits users to make text-based calls, including Text Telephone (TTY) and Speech to Speech (STS) calls.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Accordingly, the undersigned certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less-burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.
This proposed rule would establish and review loan limits. Accordingly, under 24 CFR 50.19(c)(6) this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (i) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any Federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
Claims, Health facilities, Historic preservation, Home improvement, Loan programs-housing and community development, Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, HUD proposes to amend 24 CFR part 201 as follows:
12 U.S.C. 1703; 15 U.S.C. 1639c; 42 U.S.C. 3535(d).
The revisions and addition read as follows:
(b)
(1) The total principal obligation for a loan to purchase a new manufactured home shall not exceed the sum of the following itemized amounts, up to a maximum set according to an index established by HUD in paragraph (h)(1) of this section and updated through notice which shall establish separate loan limits for single-section homes and double-section or multi-section homes:
(2) The total principal obligation for a loan to purchase an existing manufactured home shall not exceed the lesser of the following amounts, up to a maximum set according to an index established by HUD in paragraph (h)(1) of this section and updated through notice which shall establish separate loan limits for double-section or multi-section homes:
(c)
(d)
(1) The total principal obligation for a loan to purchase a new manufactured home and a lot on which to place the home shall not exceed the sum of the following itemized amounts, up to a maximum set according to an index established by HUD in paragraph (h)(3) of this section and updated through notice which shall establish separate loan limits for single-section homes and double-section or multi-section homes:
(2) The total principal obligation for a Combination Loan, to purchase an existing manufactured home and lot, shall not exceed the lesser of the following amounts, up to a maximum set according to an index established by HUD in paragraph (h)(3) of this section and updated through notice which shall establish separate loan limits for single-section homes and double-section or multi-section homes:
(f) * * *
(5) When a borrower's existing manufactured home is being refinanced in connection with the purchase of a manufactured home lot, the total principal obligation of the combination loan shall not exceed the lesser of the following amounts, up to the maximum established in paragraph (h)(3) of this section:
(h)
(1) In paragraphs (b)(1) and (2) of this section, the single-section manufactured home loan limit shall be adjusted to reflect changes in the average price of single-section manufactured home sales and the double-section or multi-section manufactured home loan limit shall be increased to reflect changes in double-section manufactured home sales, according to data published by the Census Bureau, except that the loan limits shall not be set below $69,678.
(2) In paragraph (c) of this section, the manufactured home lot loan limit shall be increased to reflect changes in the average price of all single-family home sales according to data published by HUD, except that the loan limit shall not be set below $23,226.
(3) In paragraphs (d)(1) and (2) of this section, the combination manufactured home and lot loan limits shall be increased to be the sum of the applicable loan limit for the manufactured home loan in paragraph (b)(1) of this section and the lot loan limit in paragraph (c) of this section, except that the loan limit shall not be set below $92,904.
Environmental Protection Agency (EPA).
Proposed rule.
The Commonwealth of Virginia has applied to Environmental Protection Agency (EPA) for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). By this action, EPA proposes to grant final authorization to Virginia. In the “Rules and Regulations” section of this issue of the
Send written comments by November 17, 2022.
Submit your comments, identified by Docket ID No. EPA-R03-RCRA-2022-0351, at
The EPA encourages electronic submittals, but if you are unable to submit electronically or need other assistance, please contact Jacqueline Morrison, the contact listed in the
Jacqueline Morrison, RCRA Programs Branch; Land, Chemicals, and Redevelopment Division, U.S. Environmental Protection Agency Region 3, Four Penn Center, 1600 John F Kennedy Blvd. (Mail code 3LD30), Philadelphia, PA 19103-2852; phone: (215) 814-5664, email:
EPA has explained the reasons for this action in the preamble to the direct final rule. For additional information, see the direct final rule published in the “Rules and Regulations” section of this issue of the
This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
United States African Development Foundation.
Notice of meeting.
The U.S. African Development Foundation (USADF) will hold its quarterly meeting of the Board of Directors to discuss the agency's programs and administration. This meeting will occur at the USADF office.
The meeting date is Tuesday, October 18, 2022, 9 a.m. to 11 a.m.
The meeting location is USADF, 1400 I St. NW, Suite 1000, Washington, DC 20005.
Brandi James, (202) 233-8866.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by November 17, 2022 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Food and Nutrition Service (FNS), USDA.
Notice.
The Department of Agriculture (USDA) Food and Nutrition Service (FNS) is soliciting proposals from eligible Tribal Organizations to participate in a demonstration project to purchase agricultural commodities for the Food Distribution Program on Indian Reservations (FDPIR). This demonstration project is authorized
Proposals will be accepted until 11:59 p.m. ET on January 31, 2023. See
Email proposals to
Barbara Lopez (
The Food Distribution Program on Indian Reservations (FDPIR) is administered by the Food and Nutrition Service (FNS) of the USDA and provides a food package of 100 percent domestically grown foods to income-eligible households living on Indian reservations and to American Indian households residing in approved areas near reservations or in Oklahoma. FDPIR was authorized under the Food Stamp Act of 1977 (Pub. L. 95-113), which was later renamed the Food and Nutrition Act of 2008 (FNA). FDPIR is currently administered by 105 Tribal Organizations and three State agencies and provides benefits and nutrition education services to approximately 279 Federally recognized Tribes across the United States. In FY 2021, the program served approximately 48,000 individuals on an average monthly basis. Each month, participating FDPIR households receive a defined food package to help maintain a nutritionally balanced diet. The food package is based on FNS guidance and includes input from the FDPIR Food Package Review Work Group, a member-based work group made up of representatives from the Indian Tribal Organizations and State agencies that administer FDPIR across all regions nationally, Federal, and Tribal health professionals, and FNS staff that work directly with the program. FDPIR households may select from over 100 domestically grown and produced foods, including fresh fruits and vegetables, a variety of frozen and nonperishable items, and a selection of traditional foods.
Under national program operations, FDPIR administering agencies order foods from USDA (
The USDA Foods provided in the FDPIR food package under the national program are procured by USDA's Agricultural Marketing Service (AMS) in collaboration with FNS. USDA purchases and ships the USDA Foods to Tribal Organizations and State agencies that administer FDPIR. Tribal Organizations and State agencies store and distribute the foods, determine applicant eligibility, and provide nutrition education to recipients. Section 4003(b) of the Agriculture Improvement Act of 2018 (Pub. L. 115-334, the 2018 Farm Bill) establishes a demonstration project for one or more Tribal Organization(s) within FDPIR to enter into self-determination contracts for them to purchase foods for their Indian Tribe, instead of USDA, for inclusion in the FDPIR food package. Section 4003(b)(1)(E) of the 2018 Farm Bill defines self-determination contract as:
Self-determination contracts, as defined under section 4 of the Indian Self-Determination and Education Assistance Act (ISDEAA), Public Law 93-638 (25 U.S.C. 5304), as amended, allow a Tribal Organization to have more control over the governmental affairs of their Organizations, fostering further self-governance. The 2018 Farm Bill provision under section 4003(b) supports Tribal Organization self-governance by specifically allowing Tribal Organizations to procure FDPIR food instead of USDA. This provision also allows FNS to familiarize itself with these types of contracts and to assess how FDPIR could operate under a different food distribution program model.
The 2018 Farm Bill outlined the following criteria for Tribal Organization participation and procurement of agricultural commodities:
During fiscal years (FY) 2019, 2020 and 2021, FNS engaged in six Tribal consultation meetings with Tribal leaders to receive input and feedback on the criteria for FDPIR Tribes to participate in the demonstration project. This feedback was incorporated into the criteria for the first solicitation of proposals for the demonstration project, which was published on January 14, 2021, at 86 FR 3112. Proposals were due on March 15, 2021. In total, FNS received seven proposals from eight Tribal organizations in response to the solicitation.
In October 2021, FNS awarded $3.5 million in self-determination contracts to all eight Tribal Organizations that submitted proposals. These organizations began implementation of self-determination contracting projects in FY 2022, with contracts expected to distribute selected foods for periods between six months and three years. In June 2022, FNS awarded another $2.2 million to six of the eight Tribal Organizations, for modifications and extensions to their self-determination contracts. These modifications, requested by the participating Tribal Organizations, increased the number of months that Tribal Organizations would distribute food through their previously awarded contracts, and brought all participating Tribal Organizations closer to a uniform number of distribution months.
The period of performance for round one self-determination contracts is ongoing and scheduled to conclude on September 30, 2024. Selected round one Tribal Organizations span several FNS regions and are testing the self-determination contracting model across FDPIR program size and with a variety of different foods.
Section 4003(b)(6)(B) of the 2018 Farm Bill states that only funds appropriated to the Secretary of Agriculture in advance to carry out section 4003(b) may be used to carry out this demonstration project. To date, FNS has received $9.0 million to support the demonstration project: $3 million was provided through the Further Consolidated Appropriations Act of 2020 (Pub. L. 116-94); $3 million was provided through the Consolidated Appropriations Act of 2021 (Pub. L. 116-260); and $3 million was provided through the FY 2022 Consolidated Appropriations Act (Pub. L. 117-103).
At the time the first solicitation of proposals for the demonstration project was published on January 14, 2021, at 86 FR 3112, Congress had appropriated $3 million in the FY 2020 full-year appropriations bill to carry out the demonstration project; and as per the statutory provision in section 4003(b)(6)(B) of the 2018 Farm Bill, the appropriated amount had to cover all costs associated with the demonstration project, including food procurement costs and contract support costs of any awarded self-determination contracts. To ensure that more than one Tribal Organization was able to participate, FNS limited initial individual proposals to participate in the first round of the demonstration project to no more than $1.5 million each.
Shortly after publication of 86 FR 3112, FNS received the additional $3.0 million for the demonstration project that was appropriated by Congress in the FY 2021 full-year appropriations bill, bringing total available funds for the demonstration project to $6.0 million. Using those funds, FNS awarded $3.5 million for seven round one self-determination contract proposals received in response to 86 FR 3112, in FY 2021; and awarded another $2.2 million in extensions and modifications to round one self-determination contract holders, in FY 2022. The extensions and modifications to the round one contracts aligned with the anticipated requirements outlined in this notice for new contracts. FNS also transferred $250,000 of the $6 million to the Department of the Interior, Bureau of Indian Affairs (BIA), which awarded the round one self-determination contracts and modifications and extensions on behalf of FNS.
In FY 2022, FNS received an additional $3 million to continue to support and/or expand the demonstration project. In consultation with Tribal leadership, FNS will use this amount to solicit new proposals to participate in the demonstration project and award self-determination contracts to eligible Tribal Organizations that are not currently participating.
Based on the availability of funds at the time of this notice, FNS will continue to limit initial individual proposals to participate in the second round of the demonstration project to no more than $1.5 million each. Should additional funding be appropriated by Congress for this demonstration project, FNS reserves the right to use this solicitation to select additional proposals or to modify or extend an existing contract awarded under the demonstration project.
In this second solicitation of proposals, FNS has made minor changes to the eligibility rules and criteria for participation in the demonstration project. These changes are a result of lessons learned from the first solicitation of proposals, feedback from current participants in the demonstration project, and comments from Tribal leaders received during Tribal consultation meetings. In FY 2022, FNS engaged in three Tribal consultation meetings with Tribal leaders to receive input and feedback on the demonstration at large and specifically on changes to criteria for FDPIR Tribes to participate in the demonstration project. The consultation meetings were held on December 7, 2021, March 29-30, 2022, and August 2, 2022. Tribal leaders' feedback has been incorporated into the criteria outlined below to the greatest extent possible.
In order to participate in the demonstration project, Tribal Organizations must meet the following criteria and requirements listed below and submit a complete proposal by the published due date. A proposal template is provided as part of this notice in section VI. The template is not mandatory; a proposal will be accepted for review as long as it meets all the applicable criteria in this notice.
1. Tribal Organization must administer FDPIR at the time a proposal is due, either under a direct agreement with FNS or under an agreement with a State agency. The self-determination contract will be between FNS and the Tribal Organization.
2. Tribal Organization must not already be participating in the FDPIR self-determination demonstration project.
3. Prior to contract negotiations, a Tribal Resolution from the Tribal Council authorizing the Tribal Organization to participate in this demonstration project must be submitted with the proposal. Tribal Organizations are encouraged to submit a Tribal Resolution with their proposals. However, if the Tribal Resolution is unavailable at the time the proposal is due, a Tribal Organization may alternatively submit a statement affirming that a Tribal Resolution with this authorization has been requested of
4. Tribal Organization's FDPIR program director must attest their support for the demonstration project and attest that the FDPIR program is currently being administered successfully. Tribal Organization must submit with their proposal a signed self-attestation from its FDPIR program director that covers the following areas to be verified by FNS:
FDPIR program director is supportive of participating in the demonstration project for the entire length of proposal and contract award period.
Tribal Organization has a current Plan of Operation on file with FNS or with the State agency, if applicable, that meets the regulatory requirements of 7 CFR part 253;
Tribal Organization is in compliance with regulatory inventory storage and inventory management requirements at 7 CFR 250.12; and
Tribal Organization has no outstanding financial or inventory related FNS management evaluation findings. If any related management evaluation findings are currently open, FDPIR program director should provide a description and disposition for each in the signed letter.
5. Tribal Organization must provide a budget proposal and narrative with all associated costs that are reasonable, necessary, and allocable to carry out proposed contract activities. The budget proposal, including all contract support costs (CSC), may not exceed $1.5 million.
Tribal Organizations may account for food cost fluctuations by including in their budget proposals inflationary factors for planned food purchases. To assist Tribal Organizations with estimating food cost inflation, FNS has provided suggested inflationary amounts below. These amounts are calculated by the Office of Management and Budget (OMB) based on the Consumer Price Index for food, and are similar to those used by FNS for planned food purchases. Of note, these estimates are based on a Federal fiscal year (October 1 through September 30):
For example, in preparing a proposal to participate in the demonstration project, a Tribal Organization may receive a quote from a vendor that reflects the cost to purchase six months of tomatoes in FY 2023 (
In addition to the information and documentation required under IV.A. of this notice, a Tribal Organization must also provide the following information in its proposal:
1. Identification of the current FDPIR food(s) the Tribal Organization intends to supplant (
Tribal Organizations that choose to supplant a USDA bonus food (
2. A description of the food(s) proposed for purchase and inclusion in the Tribal Organization's FDPIR program. In its description, Tribal Organization must provide the following:
A description of the nutritional value of the proposed food(s), and an explanation of how the proposed food(s) is of similar or higher nutritional value and similar portion size as the food(s) being supplanted. Alternately, Tribal Organizations may describe how the proposed food(s) is nutritionally similar, or of similar portion size, as other items in the FDPIR food package category it is replacing. The proposed food(s) does not need to provide the same specific nutrient profile as the food it is replacing, nor the specific portion size as the food it is replacing. It is not necessary to provide a direct comparison to the specific food being supplanted.
○ For example: If a Tribal Organization proposes to supplant frozen blueberries in the FDPIR food package fruit category with a berry traditional to its culture, the Tribal Organization may explain how the traditional berry is nutritionally similar to other fruits currently offered in the fruit category, and explain how the traditional berry will be offered in household-sized cartons that would provide participants with a similar amount of fruit as other offerings in the fruit category. A comparison of the specific nutrients and portion size of the frozen blueberries versus the traditional berries is not required.
○ For FDPIR food package categories, please reference FNS Handbook 501, Exhibit O: Food Distribution Program on Indian Reservations Monthly Distribution Guide Rates by Household Size (Distribution Rates).
The estimated number of months that each proposed food(s) will be distributed to Tribal Organization's existing FDPIR caseload. A minimum of twelve (12) unique months of food distribution across all offered foods is required (consecutive or non-consecutive). This means that—to meet the minimum requirement—a Tribal Organization could propose to distribute one food for 12 months, or could propose to rotate distribution of a number of foods for a total of 12 unique months (
○ This requirement represents an increase in the required minimum months of distribution, from 6 months in round one, to 12 months in round two. This change has been made to standardize self-determination contracts awarded under the demonstration project, to better measure and compare the results of individual contracts, and to minimize contract extension
○ For each proposed food(s), FNS also encourages a minimum of at least three consecutive months of distribution for individual foods, but will consider proposals for distribution of individual foods for less than three months as long as the minimum requirement for 12 unique months of distribution is met.
○ FNS encourages Tribal Organizations to submit proposals that exceed the minimum requirement of 12 unique months of distribution for all foods, and suggested minimum distribution of at least three consecutive months for individual foods, if at all possible.
An estimated timeline for distributing proposed food(s) within a 36-month contract period of performance. All self-determination contracts awarded under this solicitation will be structured with a period of performance of 36 months with the possibility of early completion or extension. The estimated period of performance for round two contracts is June 2023 through May 2026. The estimated period of performance is subject to change. A final timeline will be mutually agreed upon by the Tribal Organization and FNS and will be based upon the final period of performance and the date on which final proposed food(s) information from executed vendor contracts is received by FNS from Tribal Organization, for input into food reporting and inventory systems. The submitted timeline should take into account the depletion of inventory of supplanted USDA food(s) prior to distribution of proposed food(s) and planned distributions of proposed food(s) should not begin earlier than June 1, 2023, even though contracts may be awarded prior to that date.
A description of Tribal Organization's capacity to obtain the proposed food(s) in a quantity that meets estimated participant demand. In its description, the Tribal Organization must confirm proposed food(s) will be offered to all participants served by its program. Alternatively, a Tribal Organization may submit documentation of capacity, such as a quote for purchasing the proposed foods from the vendor(s) that the Tribal Organization proposes to work with to purchase the proposed food(s), in a quantity that would meet participant demand.
3. Letter(s) of Support from vendor(s) which will supply the food(s). Letter(s) should certify that vendor(s) sells food(s) commercially and offers food(s) that is a product grown, processed, and otherwise prepared for sale or distribution in the United States. For purposes of the demonstration project, “commercially available” means that the food(s) is presently being sold through commercial channels to the public by the vendor(s) from which the Tribal Organization is proposing to procure the food(s).
Funding, under this solicitation, will be provided via self-determination contracts, as defined by Section 4 of the ISDEAA, to at least two Tribal Organizations that meet the eligibility criteria established under section IV. above. As part of the selection process, FNS will pre-screen and review all proposals to ensure they contain the required documents and information. Upon receiving a proposal, FNS will determine whether the proposal is complete within 7 calendar days. If a proposal is received before the deadline but is determined to be incomplete, the applicant will be notified and given the opportunity to submit missing items within 7 calendar days of being notified. If there are less than 7 calendar days from the date of notification and the deadline or the notification occurs after the deadline has passed, the applicant will still be given 7 calendar days to submit the missing items, but this is only available to proposals that were initially received before the deadline. Any initial proposals, whether complete or incomplete, received after the deadline will not be considered.
Timely, complete proposals will be given to the FNS review panel to be evaluated and scored against the ranking criteria. Proposals will be evaluated using the four ranking criteria listed below, under section V.B. Evaluation Criteria, with a maximum achievable total of 100 points. The FNS review panel may ask applicants for additional clarification prior to final selection.
Final award selections will be approved by the FNS Administrator. Tribal Organizations not selected for award will be notified in writing. FNS reserves the right to use this solicitation to select additional proposals or extend an existing contract already awarded under the demonstration project should additional funds be made available through future appropriations.
The following selection criteria will be used to evaluate proposals for this demonstration project. FNS reserves the right to select proposals to meet geographical representation or project diversity notwithstanding the points awarded to each proposal. To the extent possible, FNS will ensure that the selected proposals, when considered as a group, test a range of geographic location, program size, and diversity in food selection. Tribal leaders, during consultation, also requested FNS consider selecting proposals that test a range of programs as much as possible.
The following proposal template is provided for the convenience of applicants. The use of this template is recommended but not mandatory. A proposal will be accepted for review as long as it meets all the applicable criteria in this notice. Email completed proposals to
Please provide the following information:
1. Full name, address, and telephone number of Tribal Organization proposing to contract.
2. Full name, address, telephone number, and email of Tribal Organization's main point of contact for this proposal.
3. Signed self-attestation from FDPIR program director attesting their support for participation in the demonstration project and that FDPIR program is currently being administered successfully. The self-attestation must cover the following areas:
FDPIR program director is supportive of participating in the demonstration project for the entire length of its proposal.
Tribal Organization has a current Plan of Operation on file with FNS or with the State agency, if applicable, that meets the regulatory requirements of 7 CFR part 253;
Tribal Organization is in compliance with regulatory inventory storage and inventory management requirements at 7 CFR 250.12; and
Tribal Organization has no outstanding financial or inventory related FNS management evaluation findings. If any related management evaluation findings are currently open, FDPIR program director should provide a description and disposition for each in the signed letter.
4. A Tribal Resolution(s) from the Tribal Council authorizing the Tribal Organization to participate in this demonstration project or a statement affirming that a Tribal Resolution(s) with this authorization has been requested of the Tribal Council and will be submitted prior to contract negotiations and within 30 days, if selected.
5. List of food(s) from the current FDPIR food package the Tribal Organization intends to supplant (
6. A timeline for distribution of each of the proposed food(s), with a minimum of 12 unique months of food distribution across all proposed foods (consecutive or non-consecutive) incorporated. The timeline for all food distributions should occur during the estimated period of performance (June 2023—May 2026) and should take into account the depletion of inventory of supplanted food on hand. Planned food distributions should begin no earlier than June 1, 2023. If your Tribal Organization is selected to participate in the demonstration project, you will be able to make any changes necessary to this timeline before and after award.
7. A description of the nutritional value of the proposed food(s) and explanation of how the proposed food(s) is of similar or higher nutritional value and similar portion size as the food(s) being supplanted. Alternately, Tribal Organizations may describe how the proposed food(s) is nutritionally similar, and of similar portion size, as other items in the FDPIR food package category of the food it is replacing rather than drawing a direct nutritional comparison to the specific food being supplanted.
For example: If a Tribal Organization proposes to supplant frozen blueberries in the FDPIR food package fruit category (Exhibit O) with a berry traditional to its culture, the Tribal Organization may explain how the traditional berry is nutritionally
8. A description of Tribal Organization's capacity to obtain the proposed food(s) in a quantity that meets estimated participant demand. In the description, Tribal Organization must confirm proposed food(s) will be offered to all FDPIR participants served by its program. In lieu of a description, a Tribal Organization may submit documentation of capacity, such as a quote for purchasing the proposed foods from the vendor(s) that the Tribal Organization proposes to work with to purchase the proposed food(s), in a quantity that would meet participant demand.
9. Letter(s) of Support from vendor(s) which will supply the food(s). Letter(s) should certify that vendor(s):
Sells proposed food(s) commercially (
Offers food(s) that is a product grown, processed, and otherwise prepared for sale or distribution in the United States.
10. A proposed budget and narrative of estimated costs to carry out the proposed contract activities. All costs must be reasonable, necessary, and allocable to the contract. Budget proposal, including all contract support costs, may not exceed $1.5 million. The proposed budget must include the following:
a. The total amount of funds requested.
b. A breakout of the amount of funds requested by the following categories:
Food purchases
Personnel
Equipment
Materials and supplies
Travel
Other allowable costs such as contract support costs.
c. A budget narrative that describes all major line-item expenditures that are proposed, including inflationary percentages.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Black Hills National Forest Advisory Board (NFAB) will hold a public meeting according to the details shown below. The committee is authorized under the Forest and Rangeland Renewable Resources Planning Act of 1974, the National Forest Management Act of 1976, the Federal Lands Recreation Enhancement Act, and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the committee is to provide advice and recommendations on a broad range of forest issues such as forest plan revisions or amendments, forest health including fire, insect and disease, travel management, forest monitoring and evaluation, recreation fees, and site-specific projects having forest-wide implications. General information can be found at the following website:
The meeting will be held on November 16, 2022, 1 p.m.-4:30 p.m., mountain standard time.
All committee meetings are subject to cancellation. For the status of the meeting prior to attendance, please contact the person listed under
This meeting is open to the public and will be held at the U.S. Forest Service, Mystic Ranger District Office, 8221 Mount Rushmore Road, Rapid City, South Dakota 57702. The public may also join virtually via telephone and/or video conference. Virtual meeting participation details can be found on the website listed under
Written comments may be submitted as described under
Scott Jacobson, NFAB Committee Coordinator, by phone at 605-440-1409 or email at
Individuals who use telecommunication devices for the deaf and hard of hearing (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
The meeting agenda will include:
1. Forest Plan Revision update;
2. Jenny Gulch Gold Exploration Drilling Project update;
3. Fish Fire—after the fire update; and
4. Winter recreation program on the forest.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days before the meeting to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Scott Jacobson, NFAB Committee Coordinator, Mystic Ranger District Office, 8221 Mount Rushmore Road, Rapid City, South Dakota 57702 or by email to
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have considered the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
Forest Service, Agriculture (USDA).
Notice of meeting.
The North Central Idaho Resource Advisory Committee (RAC) will hold a public meeting according to the details shown below. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act as well as to make recommendations on recreation fee proposals for sites on the Nez Perce-Clearwater National Forests, consistent with the Federal Lands Recreation Enhancement Act. General information and meeting details can be found at the following website:
The meeting will be held on November 9 and 10, 2022, 9 a.m.-5 p.m., Pacific standard time.
All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting is open to the public and will be held at the Nez Perce-Clearwater National Forests Supervisor's Office, located at 1008 Highway 64, Kamiah, Idaho 83536. The public may also join virtually via telephone and/or video conference. Virtual meeting participation details can be found on the website listed under
Written comments may be submitted as described under
Martin Mitzkus, Designated Federal Officer (DFO), by phone at 208-935-4257 or email at
Individuals who use telecommunication devices for the deaf and hard of hearing (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
The purpose of the meeting is to:
1. Elect a Chairperson;
2. Hear from Title II project proponents and discuss title II project proposals; and
3. Make funding recommendations on title II projects.
The meeting is open to the public. The agenda will include time for individuals to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Lisa Canaday, 104 Airport Road, Grangeville, ID 83530 or by email to
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken in account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Shasta County Resource Advisory Committee (RAC) will hold three public meetings in November 2022 according to the details shown below. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act as well as to make recommendations on recreation fee proposals for sites on the Shasta-Trinity National Forest within Trinity County, consistent with the Federal Lands Recreation Enhancement Act. RAC information and virtual meeting information can be found at the following website:
The meetings will be held on the following dates/times:
• November 2, 2022, 9:30 a.m.-11:30 a.m., Pacific daylight time.
• November 9, 2022, 9:30 a.m.-11:30 a.m., Pacific daylight time.
• November 16, 2022, 9:30 a.m.-11:30 a.m., Pacific daylight time.
All RAC meetings are subject to cancellation. For status of the meetings prior to attendance, please contact the person listed under
The meetings are open to the public and will be held virtually via telephone and/or video conference. Virtual meeting participation details can be found on the website listed under
Written comments may be submitted as described under
Monique Rea, RAC Coordinator, by phone at 916-580-5651 or via email at
Individuals who use telecommunication devices for the deaf and hard of hearing (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours per day, every day of the year, including holidays.
The purpose of the meetings are to cover the following:
1. Roll call;
2. Comments from the Designated Federal Officer (DFO);
3. Discuss, recommend, approve projects;
4. Public comment period; and
5. Closing comments from the DFO.
The meetings are open to the public. The agendas will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing at least three days prior to the particular meeting to be scheduled on the agenda for that meeting. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meetings. Written comments and requests for time for oral comments must be sent to Monique Rea, RAC Coordinator, 360 Main Street, Weaverville, California 96093 or by email to
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken in account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
Commission on Civil Rights.
Announcement of a public meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that the Maine Advisory Committee to the Commission will hold virtual meetings for briefing planning on the following Thursdays at 12:00 p.m. (ET): November 10, 2022, and December 8, 2022. The Committee will also convene virtual briefings to continue hearing from experts on indigent legal services in Maine on the following dates: Tuesday, November 15, 2022, and Thursday, December 15, 2022; both at 12:00 p.m. (ET).
• November 10, 2022, Thursday; 12:00 p.m.-1:00 p.m. ET.
• December 8, 2022, Thursday; 12:00 p.m.-1:00 p.m. ET.
•
•
Liliana Schiller at
These meetings are available to the public through the WebEx link above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing, may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the call-in number found through registering at the web link provided for these meetings.
Members of the public are entitled to make comments during the open period at the end of the meetings. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be emailed to Liliana Schiller at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize and expand FTZ 164 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including section 400.13, to the Board's standard 2,000-acre activation limit for the zone, to an ASF sunset provision for magnet sites that would terminate authority for Sites 2 and 3 if not activated within five years from the month of approval, and to an ASF sunset provision for subzone/usage-driven sites that would terminate authority for the site of Subzone 164A if no foreign-status merchandise is admitted for a
On June 15, 2022, GHSP, Inc., submitted a notification of proposed production activity to the FTZ Board for its facilities within Subzone 189F, in Grand Haven, Hart and Holland, Michigan.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
The Information Systems Technical Advisory Committee (ISTAC) will meet on November 2 and 3, 2022, at 9 a.m., Eastern Standard Time, in the Herbert C. Hoover Building, Room 48019, 14th Street between Constitution and Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology.
4. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted.
To the extent time permits, members of the public may present oral statements to the Committee.
The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that public presentation materials or comments be forwarded before the meeting to Ms. Springer.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on January 7, 2022, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (l0)(d)), that the portion of the meeting concerning trade secrets and commercial or financial information deemed privileged or confidential as described in 5 U.S.C. 552b(c)(4) and the portion of the meeting concerning matters the disclosure of which would
For more information, contact Ms. Springer via email.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that Divyashakti Granites Ltd., a producer/exporter of quartz surface products from India, received countervailable subsidies during the period of review October 11, 2019, through December 31, 2020.
Applicable October 18, 2022.
Jolanta Lawska, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-8362.
On June 15, 2022, Commerce published the preliminary results of this review and invited interested parties to comment.
Quartz surface products consist of slabs and other surfaces created from a mixture of materials that includes predominately silica (
In addition, quartz surface products are covered by the
Subject merchandise includes material matching the above description that has been finished, packaged, or otherwise fabricated in a third country, including by cutting, polishing, curing, edging, thermoforming, attaching to, or packaging with another product, or any other finishing, packaging, or fabrication that would not otherwise remove the merchandise from the scope of the
The scope of the
The products subject to the scope are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under the following subheading: 6810.99.0010. Subject merchandise may also enter under subheadings 6810.11.0010, 6810.11.0070, 6810.19.1200, 6810.19.1400, 6810.19.5000, 6810.91.0000, 6810.99.0080, 6815.99.4070, 2506.10.0010, 2506.10.0050, 2506.20.0010, 2506.20.0080, and 7016.90.1050. The HTSUS subheadings set forth above are provided for convenience and U.S. Customs purposes only. The written description of the scope 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 results 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
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 company listed above for the year 2020, 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, U.S. Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that certain steel nails from Taiwan were sold in the United States at less than normal value during the period of review (POR), July 1, 2020, through June 30, 2021. Commerce also determines that certain companies under review made no shipments of certain steel nails from Taiwan during the POR.
Applicable October 18, 2022.
Irene Gorelik, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6905.
Commerce published the
The merchandise covered by this
We addressed all issues raised in parties' case and rebuttal briefs in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is included in Appendix I of this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
In the
Further, in the
As we stated in the
We have determined the following dumping margins for the firms listed below for the period July 1, 2020, through June 30, 2021:
Normally, Commerce will disclose the calculations performed in connection with the final results of review to parties to the proceeding in accordance with 19 CFR 351.224(b). However, as there were no margin calculations performed in the instant review, there are no calculations to disclose for the final results of this review.
Pursuant to section 751(a)(2)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.212(b)(1), Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For these final results, we will instruct CBP to apply an
As indicated above, for each company which we determined had “no shipments” of the subject merchandise during the POR, we will instruct CBP to liquidate all POR entries associated with these companies at the all-others rate
Finally, with respect to the two resellers, as discussed in the
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be in effect for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for King Chuang, Liang
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to an administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Western Pacific Fishery Management Council (Council) will hold meetings throughout the main Hawaiian Islands to solicit public input and comments on management alternatives for non-commercial fishing in the Northwestern Hawaiian Islands (NWHI) Monument Expansion area.
The meetings will be held between November 1 and November 10, 2022. For specific times and agendas, see
The meetings will be held at the Cafeteria, Elise H. Wilcox Elementary School at 4319 Hardy St., Lihue, Kauai, HI 96766; University of Hawaii Maui College at 310 W Kaahumanu Ave., Kahului, Maui, HI 96732; Grand Naniloa Hotel at 93 Banyan Dr. Hilo, Hawaii Island, HI 96720; Royal Kona Resort at 75-5852 Alii Dr. Kailua-Kona, Hawaii Island, HI 96740; Lanikeha Community Center in 2200 Farrington Ave. Hoolehua, Molokai, HI 96729; and Ala Moana Hotel at 410 Atkinson Dr. Honolulu, Oahu, HI 96814.
Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council; phone: (808) 522-8220.
All times shown are in Hawaii Standard Time. Kauai, November 1, 2022, 6 p.m.-9 p.m.; Maui, November 3, 2022, 6 p.m.-9 p.m.; Hilo, November 4, 2022, 6 p.m.-9 p.m.; Kona, November 5, 2022, 10 a.m.-1 p.m.; Molokai, November 8, 2022, 6 p.m.-9 p.m.; and Honolulu, November 10, 2022, 6 p.m.-9 p.m.
Please note that the evolving public health situation regarding COVID-19 may affect public participation requirements and conduct at these public meetings.
Background documents for these meetings will be available at
These meetings are accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments on proposed renewal incidental harassment authorization (IHA).
NMFS received a request from Chesapeake Tunnel Joint Venture (CTJV) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to the Parallel Thimble Shoal Tunnel Project (PTST) in Virginia Beach, Virginia. These activities are nearly identical to those covered in the current authorization, and include a subset of the initial work. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
Comments and information must be received no later than November 2, 2022.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, and should be submitted via email to
Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the original application, renewal request, and supporting documents (including NMFS
The Marine Mammal Protection Act (MMPA) prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). Monitoring and reporting of such takings are also required. The meaning of key terms such as “take,” “harassment,” and “negligible impact” can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial authorization, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the
1. A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA).
2. The request for renewal must include the following:
• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at:
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On November 16, 2021, NMFS issued an IHA to CJTV to take marine mammals incidental to the Parallel Thimble Shoal Tunnel Project in Virginia Beach, Virginia (86 FR 67024, November 24, 2021), effective from November 16, 2021 through November 15, 2022. On August 24, 2022, NMFS received an application for the renewal of that initial IHA. As described in the application for renewal IHA, the activities for which incidental take is requested are nearly identical to, and a subset of, those covered in the initial authorization. The project has experienced delays and a portion of the work covered in the initial IHA will not be completed by the time it expires. As required, the applicant also provided a preliminary monitoring report which confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted.
CTJV's planned activities include construction associated with the PTST project. Specifically, the location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the initial IHA. The precise details of the work planned under the renewal IHA are nearly identical to that described in the initial IHA; the planned work includes a subset of the initial activities, as well as some additional work that involves additional piles of identical type and driving methods as initially proposed. Details of the additional work are described below. The project consists of the construction of a two-lane parallel tunnel to the west of the existing Thimble Shoal Tunnel, connecting Portal Islands Nos. 1 and 2 of the Chesapeake Bay Bridge Tunnel (CBBT) facility which extends across the mouth of the Chesapeake Bay near Virginia Beach, Virginia. The PTST project will address existing constraints to regional mobility based on current traffic volume along the facility. Planned construction associated with the initial IHA included the driving of 764 piles over 252 days as shown below:
• 722 36-inch steel pipe piles;
• 42 42-inch steel pipe piles.
Of these planned activities, under the initial IHA CTJV installed a total of 423 36-inch pipe piles and 26 42-inch pipe piles, a total of 449 piles. The remaining 16 42-inch piles have been eliminated from the construction plan due to a change in design. This change includes the use of 163 additional 36-inch piles instead of the originally requested 42-inch piles. Remaining piles will be installed using impact driving, vibratory driving and drilling with down-the-hole (DTH) hammers. Some piles will be removed via vibratory hammer. Accounting for work conducted under the initial IHA and the design change resulting in an increase in total piles, CTJV plans to drive 462 piles over an estimated 206 days under this proposed renewal IHA.
The anticipated impacts are identical to those described in the initial IHA. NMFS anticipates the take of the same five species of marine mammal (harbor seal, gray seal, bottlenose dolphin, harbor porpoise, and humpback whale) by Level A and Level B harassment incidental to underwater noise resulting from construction associated with the proposed activities.
The following documents are referenced in this notice and include important supporting information:
• Initial final IHA (86 FR 67024, November 24, 2021);
• Initial proposed IHA (86 FR 56902, October 13, 2021); and
• 2021 IHA application, references cited, and previous public comments received (available at
The PTST project entails construction of a two lane parallel tunnel to the west of the existing Thimble Shoal Tunnel. In-water pile driving to create vessel moorings, temporary work trestles (Temporary dock on Portal Island 1, Roadway Trestle on Portal Island 1 and 2 and Omega Trestles on both Island to support Berm construction) and Support Of Excavation (SOE) walls on both islands will take place during the construction process. The 6,525 linear feet (ft.) (1,990 meters (m)) of new tunnel will be constructed with a top of tunnel depth/elevation of 100 ft. (30.5m) below Mean Low Water (MLW) within the width of the 1,000-ft (305 m)-wide navigation channel. Remaining proposed in-water activities to be covered under this Renewal include the following:
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Some in-water construction activities would occur simultaneously. A detailed description of the construction activities for which authorization of take is proposed here may be found in the
A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the
A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which the authorization of take is proposed here may be found in the Notice of the Proposed IHA (86 FR 56902, October 13, 2021) for the initial authorization. NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined that neither this nor any other new information affects our initial analysis of impacts on marine mammals and their habitat.
A detailed description of the methods and inputs used to estimate take for the specified activity are found in the
Preliminary monitoring data from November 16, 2021 to August 1, 2022 indicate that significantly fewer animals than predicted have been observed at the PTST location. Table 2 indicates the number of animals of each species sighted and the number recorded within the respective estimated harassment zones.
The proposed mitigation, monitoring, and reporting measures included as requirements in this authorization are identical to those included in the
• Avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions;
• Conduct training between construction supervisors and crews and the marine mammal monitoring team and relevant CTJV staff prior to the start of all pile driving and DTH activity and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood;
• Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone;
• CTJV will establish and implement the shutdown zones indicated in Table 3. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones typically vary based on the activity type and marine mammal hearing group;
• Employ Protected Species Observers (PSOs) and establish monitoring locations as described in the Marine Mammal Monitoring Plan and Section 5 of the initial IHA. The Holder must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions. For all pile driving and removal, at least one PSO must be used. The PSO will be stationed as close to the activity as possible;
• The placement of the PSOs during all pile driving and removal and DTH activities will ensure that the entire shutdown zone is visible during pile installation. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone will not be visible (
• Monitoring must take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made;
• If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal;
• CTJV must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer; and
• Use a bubble curtain during impact and vibratory pile driving and DTH in water depths greater than 3 m and ensure that it is operated as necessary to achieve optimal performance, and that no reduction in performance may be attributable to faulty deployment. At a minimum, CTJV must adhere to the following performance standards: The bubble curtain must distribute air bubbles around 100 percent of the piling circumference for the full depth of the water column. The lowest bubble ring must be in contact with the substrate for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent substrate contact. No parts of the ring or other objects shall prevent full substrate contact. Airflow to the bubblers must be balanced around the circumference of
As noted previously, NMFS published a notice of a proposed IHA (86 FR 56902, October 13, 2021) and solicited public comments on both our proposal to issue the initial IHA for CTJV's construction activities and on the potential for a renewal IHA, should certain requirements be met.
A single public comment was received and addressed in the notice announcing the issuance of the initial IHA (86 FR 67024, 24 November 2021) and did not specifically pertain to the renewal of the 2021 IHA.
The construction activities proposed by CTJV are nearly identical to those analyzed in the initial IHA, as are the method of taking and the effects of the action. The planned number of days of activity will be reduced given the completion of a substantial portion (approximately 50 percent) of the originally planned work. Additionally, the work at Portal Island No. 1 is nearly complete, with an estimated 11 days of work remaining. This significantly reduces the likelihood of three drills operating concurrently for the duration of the Renewal period, thus reducing the number of days where the largest impact zones would be present. The potential effects of CTJV's activities are limited to Level A and Level B harassment in the form of auditory injury and behavioral disturbance. In analyzing the effects of the activities in the initial IHA, NMFS determined that CTJV's activities would have a negligible impact on the affected species or stocks and that the authorized take numbers of each species or stock were small relative to the relevant stocks (
NMFS has preliminarily concluded that there is no new information suggesting that our analysis or findings should change from those reached for the initial IHA. Based on the information and analysis contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; (4) CTJV's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action, and; (5) appropriate monitoring and reporting requirements are included.
Section 7(a)(2) of the ESA (16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue a renewal IHA to CTJV for conducting pile driving activities at the Thimble Shoal Tunnel in Virginia Beach, Virginia between 16 November 2022 and 15 November 2023, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed and final initial IHA can be found at
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
The
The purpose of this collection is to help determine the appropriate web content for
This information would be collected on a one-off basis and analyzed by Forrester Research, who has assisted NWS in creating a survey instrument and would provide NWS with a summary of findings, raw data and access to interactive “dashboards”, or tools, to visualize the aggregated data. Respondents include the general public, defined as (adults ages 18+) who reside in the United States, as well as NWS partners. Forrester will oversee recruitment of U.S. adults by an online market research company that aggregates large panels of people who sign up to complete internet surveys. Respondents will be asked questions about their preferred way of getting weather information (including weather on regular days and during severe/hazardous weather), their use of
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Office of Oceanic and Atmospheric Research, (OAR) National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice; correction.
NOAA is soliciting nominations for Indigenous, Tribal, Native American, Alaska Native, or Native Hawaiian stakeholders from the Alaska or Pacific Ocean basin regions to join the Ocean Exploration Advisory Board (OEAB). The purpose of the OEAB is to advise the NOAA Administrator on matters pertaining to ocean exploration including (1) priority areas for survey and discovery; (2) development of a five-year strategic plan for the fields of ocean, marine, and Great Lake science, (3) exploration and discovery; and, (4) the annual review of the NOAA Ocean Exploration Competitive Grants Program process.
The closing date for soliciting members for the notice published on
Applications should be submitted via email to Joanne Flanders:
David Turner, Ocean Exploration Advisory Board, Designated Federal Officer: (859) 327-9661;
The OEAB functions as an advisory board in accordance with the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. app., with the exception of section 14. It reports to the NOAA Administrator, as directed by 33 U.S.C. 3405 and is provided staffing and other support by the NOAA Office of Ocean Exploration and Research.
At this time, NOAA is soliciting applications to fill up to two vacancies on the OEAB from individuals demonstrating expertise and experience in areas that include scientific research relevant to ocean exploration, ocean engineering, data science, deep ocean biology, geology, oceanography, marine archaeology, or ocean-science education and communication. NOAA will give particular consideration to applications from Indigenous, Tribal, Native American, Alaska Native, or Native Hawaiian stakeholders from the Alaska or Pacific Ocean basin regions, as such stakeholders' input will be valuable in generating advice specific to those regions and stakeholders. Individuals with expertise in other NOAA ocean exploration areas are also welcome to apply, as well as representatives of other federal agencies involved in ocean exploration. The OEAB members will serve a three-year term with the possibility of one renewal for an additional three-year term. The Board meets two to three times a year.
OEAB members are appointed as Special Government Employees (SGEs) and will be subject to the ethical standards applicable to SGEs. Members are reimbursed for actual and reasonable expenses incurred in performing such duties, including travel costs, but will not be reimbursed for their time. All OEAB members serve at the discretion of the NOAA Administrator.
For more information about the OEAB, visit
Although the OEAB reports directly to the NOAA Administrator, it is provided staffing and other support from the NOAA Office of Ocean Exploration and Research which is part of the Office of Oceanic and Atmospheric Research (OAR). NOAA Ocean Exploration and Research is the only U.S. federal organization dedicated to exploring the deep ocean and the program:
• Explores the ocean to make discoveries of scientific, economic, and cultural value, with priority given to the U.S. Exclusive Economic Zone and Extended Continental Shelf;
• Promotes technological innovation to advance ocean exploration;
• Provides public access to data and information;
• Encourages the next generation of ocean explorers, scientists, and engineers; and
• Expands the national ocean exploration program through partnerships.
For more information about the NOAA Office of Ocean Exploration and Research, visit
United States Patent and Trademark Office, Department of Commerce.
Request for comments.
This request for comments seeks public input on the scientific and technical requirements to practice in patent matters before the United States Patent and Trademark Office (USPTO or Office). Specifically, the Office seeks input on whether it should revise the scientific and technical criteria for admission to practice in patent matters to require the USPTO to periodically review certain applicant degrees on a predetermined timeframe, and make certain modifications to the accreditation requirement for computer science degrees. This request for comments also seeks input on whether the creation of a separate design patent practitioner bar would be beneficial to the public and the Office, whether to add clarifying instructions to the General Requirements Bulletin for Admission to the Examination for Registration to Practice in Patent Cases before the United States Patent and Trademark Office (GRB) for limited recognition applicants, and whether the Office should make any additional updates to the scientific and technical requirements for admission to practice in patent matters. The USPTO is undertaking this effort as part of its continual review of the admission criteria for sitting for the registration examination.
Comment Deadline: Written comments must be received on or before January 17, 2023.
For reasons of government efficiency, comments must be submitted through the Federal eRulemaking Portal at
Visit the Federal eRulemaking Portal for additional instructions on providing comments via the portal. If electronic submission of and access to comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below for special instructions.
Will Covey, Deputy General Counsel and Director, Office of Enrollment and Discipline (OED), at 571-272-4097 or
In this request for comments, the USPTO seeks feedback and information on revising the scientific and technical criteria to practice in patent matters before the Office, whether the instructions to applicants for limited recognition should be clarified, and whether the Office should establish a separate design patent practitioner bar.
The Director of the USPTO has statutory authority to require a showing by patent practitioners that they possess “the necessary qualifications to render applicants or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other business before the Office.” 35 U.S.C. 2(b)(2)(D). Courts have determined that the USPTO Director bears the primary responsibility for protecting the public from unqualified practitioners.
Pursuant to that authority and responsibility, the USPTO has promulgated regulations, administered by OED, that provide that registration to practice in patent matters before the USPTO requires a practitioner to demonstrate possession of “the legal, scientific, and technical qualifications necessary for him or her to render applicants valuable service.” 37 CFR 11.7(a)(2)(ii).
The criteria for practicing before the Office are based in part on a determination of the types of scientific and technical qualifications and legal knowledge that are essential for practitioners to possess. This helps ensure that only competent practitioners who understand the applicable rules and regulations and have the background necessary to describe inventions in a full and clear manner are permitted to practice.
Presently, there is only one patent bar that applies to those who practice in patent matters before the Office, including in the utility and design patent areas. The same scientific and technical requirements for admission to practice apply regardless of the type of patent application (
The USPTO seeks written comments from the public on the scientific and technical requirements for admission to practice in patent matters, including whether there should be separate requirements for practitioners who intend to only prosecute design patent applications (
The USPTO welcomes any comments from the public on the proposals covered in this notice as well as responses to specific questions posed at the end of this notice. The Office also
The USPTO has evaluated, and continues to evaluate, the scientific and technical qualifications set forth in the GRB. These evaluations seek to clarify guidance on what will satisfy the scientific and technical qualifications and to identify possible areas of improved administrative efficiency.
The GRB lists three categories of scientific and technical qualifications that typically make one eligible for admission to the registration examination: (1) Category A, for specified bachelor's, master's, and Ph.D. degrees; (2) Category B, for other bachelor's, master's, and Ph.D. degrees with technical and scientific training; and (3) Category C, for individuals who rely on practical engineering or scientific experience and have passed the Fundamentals of Engineering test. If an applicant for registration does not qualify under any of the categories listed in the GRB, the USPTO will conduct an independent review for compliance with the scientific and technical qualifications.
Starting in early 2020, the Office undertook a review of Category B applications to identify bachelor's degrees that are routinely accepted as demonstrating the requisite scientific and technical qualifications. In September 2021, the Office added 14 of these degrees, which were previously evaluated under the criteria listed in Category B, to Category A. The review of degrees is ongoing and is currently based on applicant data from those applying for the registration exam. Category A is not an exhaustive list of all degrees that would qualify, and the USPTO's current practice is to accept degrees when the accompanying transcript demonstrates equivalence to a Category A degree (for example, molecular cell biology may be equivalent to biology).
The Office is considering whether, given the fast pace at which technology and related teachings evolve, it should periodically review commonly accepted Category B degrees and add them to Category A. These reviews would seek to clarify guidance on what would satisfy the scientific and technical qualifications, would improve administrative efficiency, and would simplify the application process for aspiring practitioners. For example, the USPTO could conduct such reviews on a three-year cycle. This timeframe would provide adequate time for the USPTO to gather, review, and analyze the degree data from a sufficient number of applicants for the registration exam. The Office invites comments on the proposed predetermined timeframe and whether the review should be based on any other criteria. If other criteria are suggested, the Office requests detailed information on why the specific criteria are recommended and any data that would be relied on in analyzing the criteria.
Currently, under Category A, the USPTO accepts computer science degrees accredited by the Computer Science Accreditation Commission (CSAC) of the Computing Sciences Accreditation Board (CSAB), or by the Computing Accreditation Commission (CAC) of the Accreditation Board for Engineering and Technology (ABET), on or before the date the degree was awarded. Computer science degrees that are so accredited may be found on the internet (
The USPTO requests input on whether the accreditation requirement for computer science degrees should be modified to accept under Category A Bachelor of Science degrees in computer science awarded by an accredited United States college or university, regardless of the ABET accreditation status of the program. Under this modification, Bachelor of Arts degrees in computer science may still qualify an applicant to sit for the examination under Category B. The Office requests that any commenters also include the rationale, data, and/or reasons for modifying the requirement.
The USPTO is considering whether a separate design patent practitioner bar would be beneficial to the public and the Office, along with possible options for creating and implementing it. To that end, the Office requests input on whether a design patent practitioner bar, in which admitted design practitioners would practice solely in design patent matters, should be established. The potential creation of a design patent practitioner bar would not impact the ability of those already registered to practice in any patent matters, including design patent matters, before the USPTO. It would also not impact the ability of applicants who meet the current criteria, including qualifying for and passing the current registration exam, to practice in any patent matters before the Office.
Options for implementing a design patent practitioner bar include requiring design patent practitioner bar applicants to:
(1) take the current registration examination, but with modified scientific and technical requirements;
(2) be a U.S. attorney (
(3) take a separate design bar examination instead of the current registration examination.
The USPTO seeks input on which of the three options, or combinations of the three options, would be most appropriate for establishing a design patent practitioner bar, including any rationale, data, and specific criteria associated with the recommended option(s). For example, if a commenter recommends a particular option, the Office seeks input on why that option was recommended over the other options; what data the commenter relied on in selecting that option, if any; and what criteria would be appropriate in executing the option. Furthermore, the Office notes that design patent examiners typically have one of the following degrees: industrial design, product design, architecture, applied arts, graphic design, fine/studio arts, or art teacher education. The Office seeks input on whether design bar applicants should have one of these degrees, or other particular degrees.
Any of the three options presented above could require regulatory, Manual of Patent Examining Procedure (MPEP) and GRB changes; training of the examining corps; updates to information technology systems; and workflow changes within the Office. Depending on the option(s) chosen, timing and costs could vary significantly. Additionally, option (3) would require the creation of an entirely new examination.
The USPTO also requests any additional comments that would be useful in deciding whether to create and implement a design patent practitioner bar, and if so, how it should be implemented. For example, the Office is interested in any additional options not described above, as well as how such options could potentially be implemented, the reasoning for such options, and any data or research the commenter relied on in postulating the options.
The USPTO requests input on whether the following instructions should be added to the GRB to aid limited recognition applicants in applying for recognition. These instructions would not change the process by which applicants for limited recognition apply for recognition. Rather, the Office seeks to clarify the process for applicants. These instructions would be inserted on page 7 of the GRB, under Section E.
E. ELIGIBILITY OF ALIENS: No grant of registration except under 37 CFR 11.6(c). An applicant who is not a United States citizen and does not reside in the U.S. is not eligible for registration except as permitted by 37 CFR 11.6(c). Presently, the Canadian Intellectual Property Office is the only patent office recognized as allowing substantially reciprocal privileges to those admitted to practice before the USPTO. The registration examination is not administered to aliens who do not reside in the United States.
Limited recognition to practice before the Office in patent matters. An alien residing in the United States may apply for limited recognition to practice before the Office in patent matters pursuant to 37 CFR 11.9(b). To be admitted to take the examination, an applicant must fulfill the requirements as stated above in Section III and 37 CFR 11.9(b), which includes that establishing that such recognition is consistent with the capacity of employment authorized by United States immigration authorities, for example the United States Citizenship and Immigration Services (USCIS), United States Department of State, U.S. Customs and Border Patrol, and the U.S. Department of Labor. The evidence establishing such consistency must demonstrate: (1) the applicant's authorization to reside in the United States, and (2) the applicant's authorization to work or be trained in the United States. It must include a copy of both sides of any work or training authorization and copies of
Qualifying documentation should specifically show that the immigration authorities have authorized the applicant to be employed or trained in the capacity of representing patent applicants before the USPTO by preparing and prosecuting their patent applications. Any approval that is pending at the time the application is submitted will result in the applicant being denied admission to the examination.
A qualifying alien within the scope of 8 CFR 274a.12(b) or (c) is not registered upon passing the examination. Therefore, such qualifying aliens will not be patent attorneys or patent agents. Rather, such an applicant will be given limited recognition under 37 CFR 11.9(b) if recognition is consistent with the capacity of employment or training authorized by immigration authorities. Documentation establishing an applicant's qualification to receive limited recognition must be submitted with the applicant's application.
Lastly, the USPTO invites any additional comments on updating the scientific and technical requirements for admission to practice in patent matters. For example, the Office is interested in any additional suggestions not described above, as well as how such suggestions could potentially be implemented, the reasoning for such suggestions, and any data or research the commenter relied on in postulating the suggestions. When offering suggestions, please reference the applicable rules and/or section in the GRB that may be impacted.
As noted above, the USPTO welcomes comments from the public on proposed updates to the scientific and technical requirements for admission to practice in patent matters. The Office is particularly interested in the public's input on the questions below; commenters can address any or all of the questions or provide additional comments:
1. Should the Office review applicant degrees and add commonly accepted Category B degrees to Category A on a predetermined timeframe,
2. Should the Office accept Bachelor of Science degrees in computer science under Category A from an accredited United States college or university regardless of whether the degree program is ABET accredited?
3. Should the Office create a separate design patent practitioner bar, and if so, which option(s) and what criteria should be implemented for its creation?
4. Should the Office add clarifying instructions to the GRB for limited recognition applicants?
5. Should the Office implement any additional updates to the scientific and technical requirements for admission to practice in patent matters, and if so, what should those include?
The United States Patent and Trademark Office (USPTO) will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The USPTO invites comment on this information collection renewal, which helps the USPTO assess the impact of its information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
The information in this collection is used by the public to submit a patent application under the PCT and by the United States Patent and Trademark Office (USPTO) to fulfill its obligation to process, search, and examine the application as directed by the treaty. The filing, search, written opinion, and publication procedures are provided for in Chapter I of the PCT. Additional procedures for a preliminary examination of PCT international applications are provided for in optional PCT Chapter II. Under Chapter I, an applicant can file an international application in the national or home office (Receiving Office (RO)) or the IB. The USPTO acts as the United States Receiving Office (RO/US) for international applications filed by residents and nationals of the United States. These applicants send most of their correspondence directly to the USPTO, but they may also file certain documents directly with the IB. The USPTO serves as an International Searching Authority (ISA) to perform searches and issues an international search report (ISR) and a written opinion (WOISA) on international applications. The USPTO also issues an international preliminary report on patentability (IPRP Chapter II) when acting as an International Preliminary Examining Authority (IPEA).
The RO reviews the application and, if it contains all of the necessary information, assigns a filing date to the application. The RO maintains the home copy of the international application and forwards the record copy of the application to the IB and the search copy to the ISA. The IB maintains the record copy of all international applications and publishes them 18 months after the earliest priority date, which is the earliest date for which a benefit is claimed. The ISA performs a search to determine whether there is any prior art relevant to the claims of the international application and will issue an international search report and written opinion as to whether each claim is novel, involves an inventive step, and is industrially applicable. The ISA then forwards the international search report and written opinion to the applicant and the IB. The IB will normally publish the application and search report 18 months after the priority date, unless early publication is requested by the applicant. Until international publication, no third person or national or regional office is allowed access to the international patent application unless so requested or authorized by the applicant. If the applicant wishes to withdraw the application (and does so before international publication), international publication does not take place.
Under optional Chapter II of the Treaty, an applicant who has filed an international application in a RO must file a demand for an international preliminary examination of the application by an IPEA, such as the USPTO. The filing of a Demand must be filed within a prescribed time period. It involves filing a form and paying certain fees. A Demand is usually filed with amendments and/or arguments under PCT Article 34 addressing objections raised in the WOISA. The International preliminary examination is a second evaluation of the potential patentability of the claimed invention (usually the claims have been amended), using the same standards on which the written opinion of the ISA was based. A copy of the examination report is sent to the applicant and to the IB. The IB then forwards a copy of the examination report to each Office elected by the applicant.
• PCT/IB/372 (Notice of Withdrawal)
• PCT/IPEA/401 (Demand and Fee Calculation Sheet)
• PCT/RO/101 (Request and Fee Calculation Sheet)
• PCT/RO/134 (Indications Relating to Deposited Microorganism or Other Biological Material)
• PTO-1382 (Transmittal Letter to the United States Receiving Office (RO/US))
• PTO-1390 (Transmittal Letter to the United States Designated/Elected Office (DO/E.O./US) Concerning a Filing Under 35 U.S.C. 371)
• PTO/SB/64/PCT (Petition for Revival of an International Application for Patent Designating the U.S. Abandoned Unintentionally Under 37 CFR 1.137(b))
This information collection request may be viewed at
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
Further information can be obtained by:
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United States Patent and Trademark Office, Department of Commerce.
Request for comments.
In this request for comments, the United States Patent and Trademark Office (USPTO or Office) seeks public input on the requirements to practice before the Patent Trial and Appeal Board (PTAB or Board). The Office
Comment Deadline: Written comments must be received on or before January 17, 2023.
For reasons of government efficiency, comments must be submitted through the Federal eRulemaking Portal at
Visit the Federal eRulemaking Portal for additional instructions on providing comments via the portal. If electronic submission of and access to comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below for special instructions.
Michael Tierney, Vice Chief Administrative Patent Judge; Scott Moore, Lead Administrative Patent Judge; and/or Jamie Wisz, Lead Administrative Patent Judge; at 571-272-9797.
In this request for comments, the USPTO seeks feedback and information on revising the criteria to practice before the PTAB in proceedings under the AIA. The Office is also exploring changes or improvements to training and development programs, such as the PTAB's Legal Experience and Advancement Program (LEAP), to increase opportunities for practitioners who wish to appear before the PTAB.
The Director of the USPTO has statutory authority to require a showing by patent practitioners that they possess “the necessary qualifications to render applicants or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other business before the Office.” 35 U.S.C. 2(b)(2)(D). Thus, courts have determined that the USPTO Director bears the primary responsibility for protecting the public from unqualified practitioners.
Pursuant to that authority and responsibility, the USPTO has promulgated regulations, administered by the Office of Enrollment and Discipline (OED), that provide that registration to practice in patent matters before the USPTO requires a practitioner to demonstrate possession of “the legal, scientific, and technical qualifications necessary for him or her to render applicants valuable service.” 37 CFR 11.7(a)(2)(ii).
The rules that currently govern practice before the PTAB in AIA proceedings differ somewhat from the rules that govern other types of USPTO proceedings. In an AIA proceeding, 37 CFR 42.10(a) requires that each represented party designate a lead counsel and at least one back-up counsel. The regulation requires that the lead counsel be a registered practitioner. The regulation allows non-registered practitioners to be back-up counsel, but only “where the lead counsel is a registered practitioner” and when “a motion to appear
The Board typically requires that
a. Contain a statement of facts showing there is good cause for the Board to recognize counsel
b. Be accompanied by an affidavit or declaration of the individual seeking to appear attesting to the following:
i. Membership in good standing of the Bar of at least one State or the District of Columbia;
ii. No suspensions or disbarments from practice before any court or administrative body;
iii. No application for admission to practice before any court or administrative body ever denied;
iv. No sanctions or contempt citations imposed by any court or administrative body;
v. The individual seeking to appear has read and will comply with the Office Patent Trial Practice Guide and the Board's Rules of Practice for Trials set forth in part 42 of 37 CFR;
vi. The individual will be subject to the USPTO Rules of Professional Conduct set forth in 37 CFR 11.101
vii. All other proceedings before the Office for which the individual has applied to appear
viii. Familiarity with the subject matter at issue in the proceeding.
LEAP is an existing PTAB program developed by the USPTO to provide training and oral advocacy opportunities for less experienced advocates to gain practical experience in proceedings before the PTAB. LEAP is open to both registered and non-registered practitioners who have had three or fewer substantive oral arguments in any federal tribunal, including the PTAB. LEAP encourages parties to offer opportunities to LEAP practitioners by offering up to 15 minutes of additional oral argument time to parties that allow a LEAP practitioner to present substantive arguments at a PTAB oral hearing. To further incentivize parties and ensure high-quality representation, LEAP allows more experienced counsel to assist a LEAP practitioner during oral arguments, or clarify statements made by the LEAP practitioner, if needed. The PTAB also offers additional training and development opportunities to LEAP practitioners, including oral argument training and the opportunity to participate in a mock oral hearing before a panel of PTAB judges.
The USPTO seeks written comments from the public on whether and how the PTAB's rules and procedures should be modified to expand eligibility to appear as the lead or back-up counsel in AIA proceedings. The USPTO also seeks written comments on whether and how changes should be made to PTAB training and development programs, such as LEAP, in order to expand opportunities for practitioners who seek to appear before the PTAB.
The USPTO welcomes any comments from the public on the proposals covered in Requests 1-4 in this notice. The USPTO also poses specific questions below and invites public feedback on them.
The PTAB's current rules and procedures seek to ensure quality representation in AIA proceedings by requiring that any non-registered practitioners be admitted
Under current PTAB rules, a non-registered practitioner can only appear in an AIA proceeding if the PTAB grants a
The USPTO is considering an additional procedure by which non-registered practitioners could be admitted to practice before the PTAB, much like the procedure in which certain district courts allow both
Under current PTAB rules, non-registered practitioners can only serve as back-up counsel; a registered practitioner must serve as the lead counsel.
The USPTO invites comments on whether and how the USPTO should revise the PTAB's rules and procedures to permit a non-registered practitioner who is admitted to practice before the PTAB under Request 1, or is admitted
Requests 1 and 2 above are directed to potential modifications to PTAB rules and procedures related to non-registered practitioners. Such non-registered practitioners may have less familiarity than registered practitioners with certain matters that may arise during AIA proceedings. For example, a non-registered practitioner may have less familiarity with issues that may arise in a motion to amend, and may not be aware of specific reissue and reexamination options that might be available to a patent owner. Accordingly, the USPTO invites comments on whether any rule permitting a non-registered practitioner to be admitted to practice before the PTAB and/or to appear as the lead counsel in an AIA proceeding should also require that the non-registered practitioner be accompanied by a registered practitioner as back-up counsel. The USPTO also invites comments on the impact on the costs of an AIA proceeding that would result from requiring that the lead or back-up counsel be a registered practitioner.
The USPTO also recognizes that circumstances may change during the course of an AIA proceeding in a way that might create a need for the services of a registered practitioner. For example, the assistance of a registered practitioner might be valuable if the patent owner contemplates or files a motion to amend. Therefore, the USPTO invites comments on whether any rule that permits a party to be represented solely by a non-registered practitioner in an AIA proceeding should require that party to subsequently retain a registered practitioner as back-up counsel upon the occurrence of certain circumstances or events.
The types of changes discussed and contemplated above may represent notable modifications to the rules and procedures that currently govern practice before the PTAB in AIA proceedings. The impacts of these types of changes may be difficult to anticipate beforehand, and may not be apparent to the USPTO or the public until well after any such changes are implemented. Accordingly, it may be desirable for the USPTO to retain flexibility to modify or refine any of the changes contemplated in this notice before they become permanent. Therefore, the USPTO invites comments on whether any of the changes to PTAB rules and procedures discussed in this notice should, if adopted, be implemented initially as a pilot program.
The USPTO is interested in offering training and development programs that will expand opportunities for practitioners desiring to practice before the PTAB, and thereby further the USPTO's goal of enabling more Americans to participate in the innovation ecosystem. The PTAB's LEAP is an example of such a program. As discussed above, LEAP practitioners benefit from specialized training and are given the opportunity to present mock oral arguments before a panel of PTAB judges. LEAP also incentivizes parties in AIA proceedings to allow LEAP practitioners to present substantive arguments during PTAB oral hearings. The USPTO is considering whether other types of training or development options might further expand opportunities for those wishing to practice before the PTAB. Accordingly, the USPTO invites comments on whether there are additional training and/or development options that the USPTO should offer to increase opportunities for less-experienced practitioners to appear as counsel in AIA proceedings and/or serve as the lead counsel in AIA proceedings.
Initially, LEAP was open only to practitioners who had three or fewer substantive oral arguments in any Federal tribunal and seven or fewer years of experience as a licensed attorney or patent agent. The PTAB recently eliminated the requirement that LEAP practitioners have seven or fewer years of experience in order to expand the pool of eligible practitioners. The USPTO is considering whether there are other changes to LEAP that might further its goals. Accordingly, the USPTO invites comments on whether it should make any changes to LEAP to increase opportunities for candidates to appear before the PTAB in AIA proceedings and/or serve as the lead counsel in AIA proceedings.
As noted above, the USPTO welcomes comments on potential proposals for expanding eligibility to appear before the PTAB in AIA proceedings and/or serve as the lead counsel in AIA proceedings in ways that would further the USPTO's goals. The USPTO also welcomes comments on whether additional training or development programs should be offered, and whether changes to LEAP should be made, to increase opportunities. The USPTO is particularly interested in the public's input on the questions below; commenters are welcome to address any or all of the questions:
1. Are there any changes to PTAB rules or procedures that the Office or the PTAB should make to increase opportunities to appear and/or serve as counsel and/or the lead counsel in AIA proceedings, such as any discussed in Requests 1-3 above?
1.1. If you answered “yes” to question 1 as to the lead counsel, should the rules require that a non-registered practitioner have prior experience in AIA proceedings and/or have completed training before being designated as the lead counsel? What level of experience and/or type of training should be required?
2. Should any rule or procedure revised by the Office that permits a non-registered practitioner to be designated as the lead counsel in an AIA proceeding also require that any such non-registered practitioner be accompanied by a registered practitioner as back-up counsel? If not, are there any circumstances or events that might occur during the course of an AIA proceeding (
3. Would a rule requiring that the lead counsel or back-up counsel in an AIA proceeding be a registered practitioner have a significant impact on the costs of such a proceeding? If so, what would the impact be, and would the impact be justified?
4. Should any of the changes discussed above, if adopted, be implemented as a pilot program?
5. Are there additional training and/or development programs the Office should offer to increase opportunities for less-experienced practitioners to appear as counsel and/or serve as the lead counsel in AIA proceedings?
6. Are there any changes to LEAP that the Office should make to increase opportunities to appear and/or serve as the lead counsel in AIA proceedings?
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before December 19, 2022.
You may submit comments, identified by “Registration under the Commodity Exchange Act,” Collection Number 3038-0023, by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Christopher W. Cummings, Market Participants Division, Commodity Futures Trading Commission, (202) 418-5445 or
Under the PRA, 44 U.S.C. 3501
With respect to the collection of information, the Commission invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate electronic, mechanical, or other technological collection techniques or other forms of information technology;
You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Department of the Navy, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by December 19, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Office of the Department of the Navy Information Management Control Officer, 2000 Navy Pentagon, Rm. 4E563, Washington, DC 20350, or call Ms. Sonya Martin at 703-614-7585.
Office of Finance and Operations, Department of Education.
Notice.
The Secretary publishes a list of persons who may be named to serve on the Performance Review Board that oversees the evaluation of performance appraisals for Senior Executive Service members of the Department of Education (Department).
These appointments are effective on October 18, 2022.
Jennifer Geldhof, Director, Executive Resources Division, Office of Human Resources, Office of Finance and Operations, U.S. Department of Education, 400 Maryland Avenue SW, Room 210-00, LBJ, Washington, DC 20202-4573. Telephone: (202) 580-9669. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
Under the Civil Service Reform Act of 1978, Public Law 95-454 (5 U.S.C. 4314(c)(4)), the Department must publish in the
You may also access documents of the Department published in the
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before December 19, 2022.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Herman Bounds, 202-453-6128.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Career, Technical, and Adult Education, Department of Education.
Notice.
On August 8, 2022, the Department of Education (Department) published in the
Braden Goetz, U.S. Department of Education, 400 Maryland Avenue SW, Room 10401, Potomac Center Plaza, Washington, DC 20202. Telephone: (202) 245-7405. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to
On August 8, 2022, we published the NIA for selection as a performance partnership pilot for fiscal year (FY) 2022 under the Performance Partnership Pilots for Disconnected Youth (P3) authority in the
The affected areas are those in which assistance to individuals or public assistance has been authorized under the following FEMA declarations:
• Puerto Rico (
• Portions of Alaska covered by a Presidential major disaster declaration (
• Florida (
• The Seminole Tribe of Florida (
• North Carolina (
Affected applicants that have already timely submitted applications under FY 2022 P3 authority competition may submit a new application on or before the new application deadline of October 21, 2022, but they are not required to do so. If a new application is not submitted, the Department will use the application that was submitted by the original deadline. If a new application is submitted, the Department will consider the application that is last submitted and timely received by 11:59:59 p.m., eastern time, on October 21, 2022. Any application submitted by an affected applicant under the reopened deadline must contain evidence (
The application period is not reopened for all applicants. Applications from applicants that are not affected, as defined above, will not be accepted past the original October 7, 2022 deadline.
All information in the notice inviting applications remains the same, except for the deadline date for affected applicants and the deadline for intergovernmental review.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before December 19, 2022.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Diana Yu, 202-245-6061.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize
Office of Science, Department of Energy.
Notice of partially-closed virtual meeting.
This notice announces an open meeting of the President's Council of Advisors on Science and Technology (PCAST). The Federal Advisory Committee Act (FACA) requires that public notice of these meetings be announced in the
Wednesday, November 9, 2022; 11:15 a.m.-4:10 p.m.
Information to participate virtually can be found on the PCAST website closer to the meeting at:
Dr. Sarah Domnitz, Designated Federal Officer, PCAST, Phone (202) 881-6399 or email:
PCAST is an advisory group of the nation's leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from the White House, cabinet departments, and other Federal agencies. See the Executive Order at
It is the policy of the PCAST to accept written public comments no longer than 10 pages and to accommodate oral public comments whenever possible. The PCAST expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
The public comment period for this meeting will take place on November 9, 2022, at a time specified in the meeting agenda. This public comment period is designed only for substantive commentary on PCAST's work, not for business marketing purposes.
PCAST operates under the provisions of FACA, all public comments and/or presentations will be treated as public documents and will be made available for public inspection, including being posted on the PCAST website at:
This document of the Department of Energy was signed on October 13, 2022, by Shena Kennerly, Acting Committee Management Officer, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
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d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
To complete the construction described above, the licensee proposes to extend the already permitted temporary variance from Article 401, approved by the Commission on September 6, 2022. Article 401 allows the licensee to, among other things, drawdown the reservoir elevation 12 feet below the normal operating elevation from January 1 to April 30. The temporary variance approved on September 6, 2022, allows the winter drawdown to occur from November 1 until the Friday before Memorial Day from September 2022 through December 10, 2025. On September 16, 2022, the licensee requested to extend the temporary variance to incorporate drawdown periods from September 1, 2023, to July 31, 2024; from November 1, 2024, to the end of May 2025; and from November 1, 2025, to July 31, 2026; and resume the licensed winter drawdown period on January 1, 2027.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that on September 29, 2022, Corpus Christi Liquefaction, LLC (CCL), 700 Milam Street, Suite 1900, Houston, Texas 77002, filed in Docket No. CP22-514-000, an application under section 3(a) of the Natural Gas Act (NGA), and Part 153 of the Commission's regulations requesting authority to acquire and reclassify approximately 3,700 feet of 48-inch and 36-inch diameter pipeline segment and ancillary facilities (Terminal Supply Line) located near the City of Gregory in San Patricio County, Texas. The Terminal Supply Line connects the outlet of the existing Cheniere Corpus Christi Pipeline L.P. (CCPL) pipeline and metering and regulating station to the existing feed gas inlet for the CCL liquefied natural gas terminal. CCPL plans to abandon the Terminal Supply Line by sale to CCL under CCPL's blanket certificate automatic authorization, pursuant to Section 7(b) of the NGA. The proposed changes will have the result that the Terminal Supply Line would no longer be part of CCPL's interstate pipeline system behind the meter, but instead would be part of CCL's integrated feed gas header facilities within the LNG Terminal.
In addition to publishing the full text of this document in the
Any questions regarding the application should be directed to Karri Mahmoud, Cheniere Energy, Inc., 700 Milam Street, Suite 1900, Houston, Texas 77002, ph. (713) 375-5000, or email:
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: you can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on November 4, 2022.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before November 4, 2022.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP22-514-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP22-514-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served to the applicant either by mail or email (with a link to the document) at: Karri Mahmoud, Cheniere Energy, Inc., 700 Milam Street, Suite 1900, Houston, Texas 77002, ph. (713) 375-5000, or email:
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests,
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
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The Commission strongly encourages electronic filing. Please file scoping comments using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application is not ready for environmental analysis at this time.
l.
Hydro Technology Systems Inc proposes to continue to operate the project in a run-of-river mode.
m. In addition to publishing the full text of this document in the
n. You may also register online at
o.
At this time, we do not anticipate holding on-site scoping meetings. Instead, we are soliciting written comments and suggestions on the preliminary list of issues and alternatives to be addressed in the NEPA document, as described in scoping document 1 (SD1), issued October 12, 2022.
Copies of the SD1 outlining the subject areas to be addressed in the NEPA document were distributed to the parties on the Commission's mailing list and the applicant's distribution list. Copies of SD1 may be viewed on the web at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Baron Winds LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 1, 2022.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1 of Unit III, pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
The cancellations are effective October 18, 2022.
Brenda Minnema, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-2840; email address:
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-2022-0544, is available at
This cancellation order follows a notice that published in the
FIFRA section 4(i)(5) (7 U.S.C. 136a-1(i)(5)) requires that all pesticide registrants pay an annual registration maintenance fee, due by January 15 of each year, to keep their registrations in effect. This requirement applies to all registrations granted under FIFRA section 3 (7 U.S.C. 136a) as well as those granted under FIFRA section 24(c) (7 U.S.C. 136v(c)) to meet special local needs. Registrations for which the fee is not paid are subject to cancellation by order and without a hearing.
Under FIFRA, the EPA Administrator may reduce or waive maintenance fees for minor agricultural use pesticides when it is determined that the fee would be likely to cause significant impact on the availability of the pesticide for the use.
In fiscal year 2022, maintenance fees were collected in one billing cycle. On December 10, 2021, all holders of either FIFRA section 3 registrations or FIFRA section 24(c) registrations were sent lists of their active registrations, along with forms and instructions for responding. They were asked to identify which of their registrations they wished to maintain in effect, and to calculate and remit the appropriate maintenance fees. Most responses were received by the statutory deadline of January 18, 2022. A notice of intent to cancel was sent in May of 2022 to companies who did not respond and to companies who responded but paid for less than all their registrations.
In fiscal year 2022, the Agency has waived the fees for 307 minor agricultural use registrations at the
The cancellation orders generally permit registrants to continue to sell and distribute existing stocks of the canceled products until one (1) year after the date on which the fee was due. Existing stocks already in the hands of dealers or users, however, can generally be distributed, sold, or used legally until they are exhausted. Existing stocks are defined as those stocks of a registered pesticide product which are currently in the United States, and which have been packaged, labeled, and released for shipment prior to the effective date of the cancellation order.
The exceptions to these general rules are cases where more stringent restrictions on sale, distribution, or use of the products have already been imposed, through special reviews or other Agency actions. These general provisions for disposition of stocks should serve in most cases to cushion the impact of these cancellations while the market adjusts.
This notice announces the cancellation of products registered under FIFRA section 3 (7 U.S.C. 136a). Table 1 of this unit lists the product cancellations, as requested by registrants, in sequence by registration number (or company number and 24(c) number).
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 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 Table 1 of this unit.
Table 3 of this unit lists all the FIFRA sections 3 and 24(c) registrations that were canceled for non-payment of the 2022 maintenance fee. These registrations were canceled by order on August 11, 2022, without a hearing.
During the public comment period provided in the notice of receipt that 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 of Unit III. Accordingly, the Agency hereby orders that the product registrations identified in Table 1 of Unit III. are canceled. The effective date of the cancellations that are the subject of this notice is October 18, 2022. Any distribution, sale, or use of existing stocks of the products identified in Table 1 of Unit III. in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VII. 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
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.
The registrants may continue to sell and distribute existing stocks of products listed in Table 1 of Unit III. until January 15, 2023. Thereafter, the registrants are prohibited from selling or distributing products listed in Table 1 of Unit III., except for export in accordance with FIFRA section 17 (7 U.S.C. 136o), or proper disposal. Persons other than the registrants may sell, distribute, or use existing stocks of products listed in Table 1 of Unit III. until existing stocks are exhausted, provided that such sale,
October 14, 2022 (87 FR 62413)
10:00 a.m., Tuesday, October 18, 2022.
The meeting is open to the public. Out of an abundance of caution related to current and potential coronavirus developments, the public's means to observe this Board meeting will be via a Webcast live on the internet and subsequently made available on-demand approximately one week after the event. Visit
Open.
The FDIC gave notice of the open meeting scheduled for Tuesday, October 18, 2022. Notice is hereby given that a matter will be added to the “discussion agenda” for the meeting.
Requests for further information concerning the meeting may be directed to Debra A. Decker, Executive Secretary of the Corporation, at 202-898-8748.
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, with revision, the Reporting Requirements Associated with Regulation Y for Extension of Time to Conform to the Volcker Rule (FR Y-1; OMB No. 7100-0333).
Comments must be submitted on or before December 19, 2022.
You may submit comments, identified by FR Y-1, by any of the following methods:
•
•
•
•
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.
To the extent that information submitted in response to the FR Y-1 constitutes nonpublic commercial or financial information, which is both customarily and actually treated as private by the respondent, it may be kept confidential under exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)). Exemption 4 protects “trade secrets and commercial or financial information obtained from a person and [that is] privileged or confidential.”
October 25, 2022 at 10:00 a.m.
Telephonic. Dial-in (listen only) information: Number: 1-202-599-1426, Code: 697 354 489#; or via web:
Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision concerning Federal Acquisition Regulation (FAR) part 27
DoD, GSA, and NASA will consider all comments received by December 19, 2022.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0095, Federal Acquisition Regulation Part 27 Requirements.
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration are combining OMB Control Nos. by FAR part. This consolidation is expected to improve industry's ability to easily and efficiently identify burdens associated with a given FAR part. This 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 extension of OMB Control No. 9000-0095 and combines it with the previously approved information collections under OMB Control Nos. 9000-0090 and 0096, with the new title “Federal Acquisition Regulation Part 27 Requirements”. Upon approval of this consolidated information collection, OMB Control Nos. 9000-0090 and 9000-0096 will be discontinued. The burden requirements previously approved under the discontinued numbers will be covered under OMB Control No. 9000-0095.
This clearance covers the information that offerors and contractors must submit to comply with the following FAR requirements:
FAR 52.227-2, Notice and Assistance Regarding Patent and Copyright Infringement. This clause requires contractors to notify the Government of any allegations of patent or copyright infringement arising during the performance of the contract. The clause requires contractors to furnish, when requested by the contracting officer, all evidence and information in the contractor's possession regarding such a claim or suit. This clause flows down to subcontracts that are expected to exceed the simplified acquisition threshold (SAT—currently $250,000).
FAR 52.227-6, Royalty Information. This provision requires offerors to report all royalties anticipated or paid in excess of $250 for the use of patented inventions by furnishing:
(1) Name and address of licensor.
(2) Date of license agreement.
(3) Patent numbers, patent application serial numbers, or other basis on which the royalty is payable.
(4) Brief description, including any part or model numbers of each contract item or component on which the royalty is payable.
(5) Percentage or dollar rate of royalty per unit.
(6) Unit price of contract item.
(7) Number of units.
(8) Total dollar amount of royalties.
Also, the contracting officer may ask the offeror to provide a copy of the current license agreement identifying claims to specific patents.
FAR 52.227-9, Refund of Royalties. This clause requires contractors to furnish to the contracting officer, before final payment under a contract, a statement of royalties paid or required to be paid in connection with performing the contract. The clause requires contractors to notify the contracting officer if the contractor is relieved, within three years after final payment under the contract, from payment of royalties included in the final contract price. This clause flows down to subcontracts in which the amount of royalties reported during negotiation of the subcontract exceeds $250.
FAR 52.227-11, Patent Rights—Ownership by the Contractor, or 52.227-13, Patent Rights—Ownership by the Government—Commerce Patent Regulations. These FAR clauses require a Government contractor to report all inventions made in the performance of work under a Government contract or subcontract for experimental, developmental, or research work to the contracting officer, submit a disclosure of the invention, and identify any publication, sale, or public use of the invention (52.227-11(c), 52.227-13(e)(1)). The contracting officer may modify 52.227-11(e) or otherwise supplement the clause to require contractors to submit periodic or interim and final reports listing subject inventions (27.303(b)(2)(i) and (ii)). The contracting officer may also require a contractor, under FAR 52.227-11, to: provide the filing date, serial number, title, patent number and issue date for any patent application filed on any subject invention in any country or, upon request, copies of any patent application so identified; and furnish the Government an irrevocable power to inspect and make copies of the patent application file when a Government employee is a co-inventor. (27.303(b)(2)(iv) and (v). In order to ensure that subject inventions are reported, the contractor is required to establish and maintain effective procedures for identifying and disclosing subject inventions (52.227-11, Alternate IV; 52.227-13(e)(1)). In addition, the contractor must require its employees, by written agreements, to disclose subject inventions (52.227-11(e)(2); 52.227-13(e)(4)). The contractor also has an obligation to utilize the subject invention, and agree to report, upon request, the utilization or efforts to utilize the subject invention (27.302(e); 52.227-11(f)).
FAR 52.227-14, Rights in Data—General. This clause enables the contractor to protect qualifying limited rights data and restricted computer software by withholding the data from the Government and instead delivering
FAR 52.227-15, Representation of Limited Rights Data and Restricted Computer Software. This provision requires an offeror to represent that it has reviewed the requirements for the delivery of technical data or computer software and state, in response to a solicitation, whether data proposed for fulfilling the data delivery requirements qualifies as limited rights data or restricted computer software. If the Government does not receive unlimited rights, the offeror must provide a list of the data that qualify as limited rights data or restricted computer software. The offeror would identify any proprietary data it would use during contract performance, in order that the contracting officer might ascertain if such proprietary data should be delivered.
FAR 52.227-16, Additional Data Requirements. This clause requires contractors to keep, for possible delivery to the Government, any data, in addition to data already required to be delivered under the contract, first produced or specifically used in performance of the contract for a period of three years from the final acceptance of all items delivered under the contract. The data delivered under this clause may be in the form of computations, preliminary data, records of experiments, etc. For any data to be delivered under this clause, the Government will pay the contractor for converting the data into a specific form, and for reproducing and delivering the data. The purpose of such recordkeeping requirements is to ensure that, if all data requirements are not known prior to contract award, the Government can fully evaluate the research in order to ascertain future activities and to insure that the research was completed and fully reported, as well as to give the public an opportunity to assess the research results and secure any additional information.
FAR 52.227-17, Rights in Data—Special Works. This clause is included in solicitations and contracts primarily for production or compilation of data. It is used in rare and exceptional circumstances to permit the Government to limit the contractor's rights in data by preventing the release, distribution, and publication of any data first produced in the performance of the contract. This clause may also be limited to particular items and not the entire contract. This clause requires contractors to assign (with or without registration), or obtain the assignment of, the copyright to the Government or its designated assignee.
FAR 52.227-18, Rights in Data—Existing Works. This clause is used when the Government is acquiring existing audiovisual or similar works, such as books, without modification. This clause requires contractors to obtain a license for the Government to reproduce, prepare derivative works, and perform and display publicly the materials.
FAR 52.227-19, Commercial Computer Software License. This clause requires contractors to affix a notice on any commercial software delivered under the contract that provides notice that the Government's rights regarding the data are set forth in the contract.
FAR 52.227-20, Rights in Data—SBIR Program. This clause authorizes contractors under Small Business Innovation Research (SBIR) contracts to affix a notice to SBIR data delivered under the contract to limit the Government's rights to disclose data first produced under the contract. For omitted or incorrect markings of data that has not been disclosed without restriction outside the Government, the contractor may request, within 6 months (or a longer time approved by the contracting officer) after delivery of the data, permission to have authorized notices placed on the data at the contractor's expense. Contractors shall obtain from their subcontractors all data and rights necessary to fulfill the contractor's obligations to the Government under the contract. If a subcontractor refuses to accept terms affording the Government those rights, the contractor shall notify the contracting officer of the refusal.
FAR 52.227-21, Technical Data Declaration, Revision, and Withholding of Payment—Major Systems. This clause requires major systems contractors to certify that the data delivered under the contract is complete, accurate, and compliant with the requirements of the contract.
FAR 52.227-23, Rights to Proposal Data (Technical). This clause allows the Government to identify pages of a proposal that would not be subject to unlimited rights in the technical data.
The information collected is used to protect the Government's rights and interests.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision concerning termination settlement proposal forms (SFs 1435-1440). DoD, GSA, and NASA invite comments on: whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the
DoD, GSA, and NASA will consider all comments received by December 19, 2022.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0012, Termination Settlement Proposal Forms (SFs 1435-1440).
This clearance covers the information that contractors must submit to comply with the following Federal Acquisition Regulation requirements:
Standard Forms (SFs) 1435 through 1440. These termination settlement proposal forms are used by all Executive agencies, including DoD, for settling terminated prime contracts and subcontracts per FAR subpart 49.6, Contract Termination Forms and Formats. The forms provide a standardized format for listing essential cost and inventory information needed to support the terminated contractor's negotiated position.
The contracting officer uses the collected information to determine or support reimbursement costs upon settlement of a terminated contract.
Office of Government Ethics (OGE).
Notice of request for agency and public comments.
After this second round notice and public comment period, the U.S. Office of Government Ethics (OGE) intends to submit modified versions of the 12 OGE model certificates and model documents for qualified trusts to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995.
Jennifer Matis at the U.S. Office of Government Ethics; telephone: 202-482-9216; TTY: 800-877-8339; Email:
In order to ensure that all applicable requirements are met, OGE is the sponsoring agency for 12 model certificates and model trust documents for qualified blind and diversified trusts. See 5 CFR 2634.402(e)(3), 2634.402(f)(3), 2634.404(e)-(g), 2634.405(d)(2), 2634.407(a); 2634.408(b)(1)-(3), 2634.408(d)(4), 2634.409, and 2634.414. The various model certificates and model trust documents are used by settlors, trustees, and other fiduciaries in establishing and administering these qualified trusts. OGE plans to submit these model certificates and model trust documents (described in detail in the table below) to OMB for renewed approval pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
The 12 model documents, along with their burden estimates, are as follows:
These estimates are based on the amount of time imposed on professional trust administrators or private representatives. OGE notes that only one set of the various model trust provisions (items (B) through (H)) will be prepared for a single qualified trust, and only prior to the establishment of that qualified trust. Likewise, other model documents listed above are used in connection with establishing the qualified trust (items (I), (J), and (K)). The remaining model documents are used after the trust's creation (items (A) and (L)). Accordingly, OGE notes that the majority of the time burden for any given trust is imposed during the creation of the trust.
At the present time, there are no active qualified trusts in the executive branch. However, OGE anticipates possible limited use of these model documents during the forthcoming three-year period. OGE estimates that there may be an average of one individual per year who initiates a qualified trust using these model documents during calendar years 2023 through 2025. OGE has accordingly estimated the average annual number of respondents to be two, which represents one respondent establishing a qualified trust and one respondent maintaining a previously established qualified trust. Based on the above, OGE estimates an average annual time burden during the next three years of 120 hours. Using an estimated rate of $300 per hour for the services of a professional trust administrator or private representative, the estimated annual cost burden is $36,000.
Under OMB's implementing regulations for the Paperwork Reduction Act, any recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons. See 5 CFR 1320.3(c)(4)(i). Therefore, OGE intends to submit, after this second round notice and comment period, all 12 qualified trust model certificates and model documents described above (all of which are included under OMB paperwork control number 3209-0007) for a three-year extension of approval.
OGE is committed to making ethics records publicly available to the extent possible. The communications documents and the confidentiality agreements (items (A), (I) and (J) on the table above), once completed, will not be available to the public because they contain sensitive, confidential information. The other completed certificates and documents (except for any trust provisions that relate to the testamentary disposition of trust assets) are retained and made publicly available based upon a proper request under section 105 of the EIGA until the periods for retention of all other reports (usually the OGE Form 278 Public Financial Disclosure Reports) of the individual establishing the trust have lapsed (generally six years after the filing of the last report). See 5 U.S.C. app. 105; 5 CFR 2634.603(g)(2). The information collected with these model trust certificates and model trust documents is part of the OGE/GOVT-1 Governmentwide Privacy Act system of records.
In seeking an extension of approval, OGE is proposing several nonsubstantive changes to the 12 qualified trust certificates and model documents.
First, OGE proposes updating the dates in Document A (Blind Trust Communications) to make them more contemporary.
Second, OGE proposes replacing “OGE” and “the Office” with “the U.S. Office of Government Ethics” to make references to the agency consistent with that of the actual model trust language.
Third, OGE proposes replacing references to the Ethics in Government Act of 1978 as “the Ethics Act” with “the Act” in order to maintain consistency.
Fourth, OGE proposes fixing a typo by removing the period (.) following the “NW” in OGE's address.
A
Specifically, OGE seeks public comment on the following:
• Do the model qualified blind trusts provide sufficient direction to establish a trust under the Qualified Trust Program? If not, what provisions could be clearer or what language should be changed?
• Do the model qualified diversified trusts provide sufficient direction to establish a trust under the Qualified Trust Program? If not, what provisions could be clearer or what language should be changed?
• Do the Additional Trust Documents provide sufficient information for individuals to comply with the logistical requirements (
Food and Drug Administration, Department of Health and Human Services (HHS).
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by November 17, 2022.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Rachel Showalter, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 240-994-7399,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Tobacco products are governed by chapter IX of the Federal Food, Drug, and Cosmetic Act (sections 900 through 920) (21 U.S.C. 387 through 21 U.S.C. 387t). Section 3 of the Comprehensive Smokeless Tobacco Health Education Act of 1986 (the Smokeless Tobacco Act) (15 U.S.C. 4402) requires, among other things, that all smokeless tobacco product packages and advertisements bear one of four required warning statements. Section (b)(3)(A) of 15 U.S.C. 4402 requires that the warnings be displayed on packaging and advertising for each brand of smokeless tobacco “in accordance with a plan submitted by the tobacco product manufacturer, importer, distributor, or retailer” to, and approved by, FDA.
To implement these statutory requirements, warning plans are reviewed by FDA, upon submission by respondents. FDA published a draft guidance entitled “Submission of Warning Plans for Cigarettes and Smokeless Tobacco Products” on September 9, 2011, which describes the information and format to be submitted for smokeless plans (
Based on our experience with the information collection over the past 3 years, we retain our estimate of 60 hours to complete an initial rotational plan. We estimate half this time for preparing and submitting a supplement to an approved plan (30 hours).
In the
We estimate the burden of this collection of information as follows:
FDA estimates a total of 1 respondent will submit a new original warning plan yearly and take 60 hours to complete a rotational warning plan for a total of 60 burden hours. In addition, FDA estimates a total of 4 respondents will submit a supplement to an approved warning plan at 30 hours per response for a total of 120 hours. After receiving the initial influx of original warnings plans, FDA does not expect to receive as many original warning plans annually. We expect that a few supplements will continue to be received as new products are marketed or as warning plans are revised. Therefore, we have decreased our estimate burden by 360 hours.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) permanently debarring Gregory Settino from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Mr. Settino was convicted of a felony under Federal law for conduct that relates to the regulation of any drug product under the FD&C Act. Mr. Settino was given notice of the proposed permanent debarment and was given an opportunity to request a hearing to show why he should not be debarred. As of August 15, 2022 (30 days after receipt of the notice), Mr. Settino had not responded. Mr. Settino's failure to respond and request a hearing within the prescribed timeframe constitutes a waiver of his right to a hearing concerning this action.
This order is applicable October 18, 2022.
Submit applications for special termination of debarment to the Dockets Management Staff, Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-402-7500, or at
Jaime Espinosa, Division of Enforcement (ELEM-4144), Office of Strategic Planning and Operational Policy, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-402-8743, or at
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual from providing services in any capacity to a person that has an approved or pending drug product application if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. On April 20, 2022, Mr. Settino was convicted, as defined in section 306(l)(1) of the FD&C Act, in the U.S. District Court for the Eastern District of New York, when the court accepted his plea of guilty and entered judgment against him for the felony offense of theft of medical products in violation of 18 U.S.C. 670.
As described in the indictment in his case, filed on September 20, 2020, from approximately 2012 to January 2020, Mr. Settino was the production supervisor of manufacturing for Luitpold Pharmaceuticals, Inc. (Luitpold), which was renamed American Regent, Inc. (American Regent) in January 2019. Luitpold and American Regent manufactured an injectable equine drug called ADEQUAN, which is administered to horses with degenerative joint disease. In his capacity as a production supervisor, Mr. Settino supervised the manufacture of pre-retail medical products including ADEQUAN. From approximately 2012 to January 2020, Mr. Settino stole thousands of bottles of ADEQUAN from Luitpold and American Regent and then sold the stolen ADEQUAN for a total of more than $600,000. As contained in the sentencing memoranda from his case, filed on March 31, 2022, and April 19, 2022, Mr. Settino resold the stolen drugs, many of which were expired, to horse trainers and veterinarians at New York area racetracks.
Based on this conviction, FDA sent Mr. Settino by certified mail on July 11, 2022, a notice proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Mr. Settino was convicted, as set forth in section 306(l)(1) of the FD&C Act, of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. The proposal also offered Mr. Settino an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted an election not to use the opportunity for a hearing and a waiver of any contentions concerning this action. Mr. Settino received the proposal on July 15, 2022. He did not request a hearing within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and any contentions concerning his debarment (21 CFR part 12).
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Mr. Settino has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act.
As a result of the foregoing finding, Mr. Settino is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application, applicable (see
Any application by Mr. Settino for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2022-N-0736 and sent to the Dockets Management Staff (see
Publicly available submissions will be placed in the docket and will be viewable at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) announces a forthcoming public advisory committee meeting of the Blood Products Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues related to blood and products derived from blood. At least one portion of the meeting will be closed to the public.
The meeting will be held virtually on December 8, 2022, from 9:30 a.m. to 1:30 p.m. Eastern Time.
Please note that due to the impact of the COVID-19 pandemic, all meeting participants will be joining this advisory committee meeting via an online teleconferencing platform. Answers to commonly asked questions about FDA advisory committee meetings may be accessed at:
Christina Vert or Tonica Burke, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 1244, Silver Spring, MD 20993-0002, 240-402-8054,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available on FDA's website at the time of the advisory committee meeting. Background material and the link to the online teleconference meeting room will be available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Christina Vert at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, Department of Health and Human Services (HHS).
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Acute Myeloid Leukemia: Developing Drugs
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002 or Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Donna Przepiorka, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 2116, Silver Spring, MD 20993-0002, 301-796-5358; Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a guidance for industry entitled “Acute Myeloid Leukemia: Developing Drugs and Biological Products for Treatment.” This guidance is intended to assist sponsors in the clinical development of drugs and biological products for the treatment of AML. This guidance includes FDA's current thinking regarding the overall development program and clinical trial designs to support an indication of treatment of AML, including indications limited to an individual phase of treatment.
New classes of drugs are being developed as alternatives to the standard cytotoxic drugs for the treatment of AML. The following factors contribute substantially to the complexity of clinical development programs for such new drugs: the expansion of treatment intent, broadening of the intended population, and development of a wide range of new drug classes as alternatives to cytotoxic
This guidance finalizes the draft guidance entitled “Acute Myeloid Leukemia: Developing Drugs and Biological Products for Treatment” issued August 13, 2020 (85 FR 49383). FDA considered comments received on the draft guidance as the guidance was finalized. Changes from the draft to the final guidance include editorial changes, clarifications of the time frame for marrow sampling and peripheral blood tests to establish complete remission, the inclusion of marker-negative patients in studies of targeted therapies, and recommended operating characteristics for safety-stopping rules.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Acute Myeloid Leukemia: Developing Drugs and Biological Products for Treatment.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR 312 have been approved under OMB control number 0910-0014; the collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001; the collections of information in 21 CFR part 601 have been approved under 0910-0338; and the collections of information in 21 CFR 201.56 and 201.57 have been approved under OMB control number 0910-0572.
Persons with access to the internet may obtain the guidance at
Food and Drug Administration, Department of Health and Human Services (HHS).
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Tissue Agnostic Drug Development in Oncology.” For the purpose of this guidance, the term “tissue agnostic oncology drug” refers to a drug that targets a specific molecular alteration(s) (a kind of biomarker) across multiple cancer types as defined, for example by organ, tissue, or tumor type. This draft guidance describes the development of tissue agnostic drugs, scientific considerations in determining when tissue agnostic oncology drug development may be appropriate, and, if appropriate, issues to be addressed during such development. Tissue agnostic drug development may expedite or enable the development of new therapies for patients with rare cancer types.
Submit either electronic or written comments on the draft guidance by December 19, 2022 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. The draft guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
Steven Lemery, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 2374, Silver Spring, MD 20993-0002, 301-796-2276; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a draft guidance for industry entitled “Tissue Agnostic Drug Development in Oncology.” This draft guidance provides recommendations to sponsors regarding considerations for tissue agnostic drug development in oncology. For the purpose of this guidance, the term “tissue agnostic oncology drug” refers to a drug that targets a specific molecular alteration(s) (a kind of biomarker) across multiple cancer types as defined, for example by organ, tissue, or tumor type. A tissue agnostic oncology drug can therefore be used to treat multiple types of cancer (
The draft guidance describes factors that sponsors should consider when determining whether a tissue agnostic oncology drug development program may be scientifically and clinically appropriate, such as biology, subject population, clinical pharmacology, and clinical safety and efficacy. In addition, the draft guidance describes issues to be addressed in a tissue agnostic drug development program, such as nonclinical assessment, subject selection, study designs, statistical considerations, endpoints, pediatrics, diagnostic considerations, postapproval data and information, and labeling.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Tissue Agnostic Drug Development in Oncology.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014. The collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001. The collections of information in 21 CFR part 601 have been approved under OMB control number 0910-0338. The collections of information in 21 CFR 201.56 and 201.57 have been approved under OMB control number 0910-0572.
Persons with access to the internet may obtain an electronic version of the draft guidance at
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Characterizing, Collecting, and Reporting Immune-Mediated Adverse Reactions in Cancer Immunotherapeutic Clinical Trials.” This guidance is intended for sponsors of cancer immunotherapeutic drugs that modulate the endogenous immune system and may break immunologic tolerance to normal organs and tissues; it provides recommendations regarding the data that should be collected and evaluated
Submit either electronic or written comments on the draft guidance by December 19, 2022 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Marc Theoret, Center for Drug Evaluation and Research (HFD-150), Food and Drug Administration, 10903 New Hampshire Ave, Silver Spring, MD 20993-0002, 301-796-4099; or Stephen Ripley, Center for Biologics Evaluation and Research, Office of Communication, Outreach, and Development, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a draft guidance for industry entitled “Characterizing, Collecting, and Reporting Immune-Mediated Adverse Reactions in Cancer Immunotherapeutic Clinical Trials.” This guidance is intended for sponsors of cancer immunotherapeutic drugs that modulate the endogenous immune system and may break immunologic tolerance to normal organs and tissues; it provides recommendations regarding the data that should be collected and evaluated to assess whether adverse events are imARs and the data on imARs that should be included in an NDA or BLA for a cancer immunotherapeutic drug.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Characterizing, Collecting, and Reporting Immune-Mediated Adverse Reactions in Cancer Immunotherapeutic Clinical Trials.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014; the collections of information in 21 CFR part 314 including the submission of labeling, have been approved under OMB control number 0910-0001; and the collections
Persons with access to the internet may obtain the draft guidance at
Office of Infectious Disease and HIV/AIDS Policy (OIDP), Office of the Assistant Secretary for Health (OASH), Office of the Secretary, Department of Health and Human Services.
Notice; addendum to 87 FR 56964 published on September 16, 2022.
The Office of the Assistant Secretary for Health published a notice of an upcoming meeting of the Tick-Borne Disease Working Group (TBDWG) in the
The public can view the meeting online via webcast on October 24 and 25, 2022 from approximately 9:00 a.m. to 5:00 p.m. ET (times are tentative and subject to change) each day. The confirmed times and agenda items for the meeting will be posted on the TBDWG web page at
As stated in the
James Berger, Designated Federal Officer for the TBDWG; Office of Infectious Disease and HIV/AIDS Policy, Office of the Assistant Secretary for Health, Department of Health and Human Services, Tower Building, 1101 Wootton Parkway, Rockville, MD 20852. Email:
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.
National Institutes of Health, HHS.
Notice.
Through this Request for Information (RFI), the Sexual & Gender Minority Research Office (SGMRO) in the Division of Program Coordination, Planning, and Strategic Initiatives (DPCPSI), Office of the Director (OD), National Institutes of Health (NIH), invites feedback from stakeholders throughout the scientific research community, clinical practice communities, patient and family advocates, scientific or professional organizations, federal partners, internal NIH stakeholders, and other interested constituents on research opportunities related to the upcoming NIH Scientific Workshop on Gender-Affirming Care for Transgender and Gender-Diverse Populations. Current evidence-based clinical practices are available for health professionals to assist transgender and gender-diverse populations but additional research is needed to advance this area of care. The overarching purpose of this workshop is to identify and prioritize key infrastructure and research needed to further our understanding of gender affirming care for transgender and gender diverse populations across the life course. Various populations (
The SGMRO's Request for Information is open for public comment for a period of 4 weeks. Comments must be received on or before COB (5:00 p.m. ET) November 18, 2022, to ensure consideration. After the public comment period has closed, the comments received by SGMRO will be considered in a timely manner and shared with invitees to the Scientific Workshop on Gender-Affirming Care for Transgender and Gender-Diverse Populations.
Please see the
Irene Avila, Ph.D., Assistant Director, Sexual & Gender Minority Research Office (SGMRO),
The Sexual and Gender Minority Research Office (SGMRO) (
In September 2020, SGMRO posted the NIH Strategic Plan to Advance Research on the Health and Well-Being of Sexual and Gender Minorities FY 2021-2025 (
The NIH seeks comments and/or suggestions from all interested parties on key research opportunities in gender-affirming care for transgender and gender-diverse populations.
Responses to this RFI are voluntary.
This RFI is for information and planning purposes only and should not be construed as a solicitation for applications or proposals, or as an obligation in any way on the part of the United States Federal Government, the NIH, or individual NIH Institutes, Centers, and Offices to provide support for any ideas identified in response to it. The Federal Government will not pay for the preparation of any information submitted or for the Government's use of such information.
No basis for claims against the U.S. Government shall arise as a result of a response to this RFI or from the Government's use of such information. Additionally, the Government cannot
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.
U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the U.S. Geological Survey (USGS) is proposing to renew an Information Collection.
Interested persons are invited to submit comments on or before December 19, 2022.
Send your comments on this Information Collection Request (ICR) by mail to U.S. Geological Survey, Information Collections Officer, 12201 Sunrise Valley Drive MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact Elizabeth S. Sangine by email at
In accordance with the PRA, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) is the collection necessary to the proper functions of the USGS minerals information mission; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personally identifiable information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you can ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor, nor is a person required to respond to, a collection of information
The authorities for this action are the PRA, the National Materials and Minerals Policy, Research and Development Act of 1980 (30 U.S.C. 1601
Department of the Interior.
Notice of availability.
In accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act of 1969 (NEPA), the
Nanciann Regalado, via email at
On April 20, 2010, the mobile offshore drilling unit,
State and Federal trustees conducted the natural resource damage assessment (NRDA) for the
The
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service (USFWS), and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• U.S. Environmental Protection Agency (EPA);
• State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas: Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
The Trustees reached and finalized a settlement of their natural resource damage claims with BP in an April 4, 2016, Consent Decree approved by the U.S. District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Alabama Restoration Area are now chosen and managed by the Alabama TIG. The Alabama TIG is composed of the following six Trustees: Alabama Department of Conservation and Natural Resources, Geological Survey of Alabama, DOI, NOAA, EPA, and USDA.
The Alabama TIG Restoration Plan III/Environmental Assessment (RP III/EA) selected seven projects for implementation, allocating funds from two restoration types identified in the
A Notice of Availability of the Draft SRP was published in the
The Final SRP is being released in accordance with OPA, including criteria set forth in the associated Natural Resource Damage Assessment regulations found in the Code of Federal Regulations (CFR) at 15 CFR part 990, NEPA and its implementing regulations found at 40 CFR parts 1500-1508, and the Final PDARP/PEIS and Consent Decree. The Final SRP provides supplemental OPA NRDA analysis for two Bon Secour National Wildlife Refuge (BSNWR) recreation enhancement projects considered in the RP III/EA: the Mobile Street Boardwalk and Centennial Trail Boardwalk projects. In the Final SRP the AL TIG selects implementation of its preferred alternative: adding $2,037,313 in funding to the Mobile Street Boardwalk project. Fully funding this project will continue the process of restoring natural resources and services injured or lost as a result of the
The documents comprising the administrative record for the SRP can be viewed electronically at
The authority of this action is the OPA (33 U.S.C. 2701
Bureau of Land Management, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Land Management (BLM) proposes to renew an information collection.
Interested persons are invited to submit comments on or before November 17, 2022.
Written comments and recommendations for this information collection request (ICR) should be sent within 30 days of publication of this notice to
To request additional information about this Information Collection Request (ICR), contact Jessica Phillips by email at
In accordance with the PRA (44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again inviting the public and other Federal agencies to comment on the proposed ICR described below. The BLM is especially interested in public comment addressing the following:
(1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used.
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice are a matter of public record. 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.
Leases.
An agency may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to a collection of information unless it displays a currently valid OMB Control Number.
The authority for this action is the PRA of 1995 (44 U.S.C. 3501
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to revise an existing information collection.
Interested persons are invited to submit comments on or before December 19, 2022.
Send your comments on this information collection request (ICR) by mail to Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Room 4556-MIB, Washington, DC 20240, or by email to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) is the collection necessary to the proper functions of the agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on September 9, 2022, under section 337 of the Tariff Act of 1930, as amended, on behalf of OPEX Corporation of Moorestown, New Jersey. The complaint was supplemented on September 29, 2022. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain automated put walls and automated storage and retrieval systems, associated vehicles, associated control software, and component parts thereof by reason of the infringement of certain claims of U.S. Patent No. 11,192,144 (“the '144 patent”) and U.S. Patent No. 11,358,175 (“the '175 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Jessica Mullan, Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1-19 of the '144 patent and claims 1-11 and 18-21 of the '175 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “automated put walls and automated storage and retrieval systems; vehicles associated with these automated put walls and automated storage and retrieval systems; control software associated with these automated put walls and automated storage and retrieval systems; and component parts of these automated put walls and automated storage and retrieval systems”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: OPEX Corporation, 305 Commerce Drive, Moorestown, NJ 08057.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
HC Robotics (
Invata, LLC (
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party to this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of an expedited review pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order on ferrovanadium from South Korea would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
July 5, 2022.
Keysha Martinez (202-205-2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this review 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).
In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the review must be served on all other parties to the review (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.
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
National Center for Natural Products Research has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before December 19, 2022. Such persons may also file a written request for a hearing on the application on or before December 19, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on September 12, 2022, National Center for Natural Products Research, Coy Waller Research Center, 806 Hathorn Road, University, Mississippi 38677-1848, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture the listed controlled substances for product development and reference standards. In reference to drug codes 7360 (Marihuana) and 7370 (Tetrahydrocannabinols), the company plans to isolate these controlled substances from procured 7350 (Marihuana Extract). In reference to drug code 7360, no cultivation activities are authorized for this registration. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Department of Justice.
Notice with request for comments.
The Drug Enforcement Administration (DEA) proposes to establish the 2023 aggregate production quotas for controlled substances in schedules I and II of the Controlled Substances Act (CSA) and the assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine.
Interested persons may file written comments on this notice in accordance with 21 CFR 1303.11(c) and 1315.11(d). Electronic comments must be submitted, and written comments must be postmarked, on or before November 17, 2022. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
Based on comments received in response to this notice, the Administrator may hold a public hearing on one or more issues raised. In the event the Administrator decides in her sole discretion to hold such a hearing, the Administrator will publish a notice of any such hearing in the
To ensure proper handling of comments, please reference “Docket No. DEA-1051P” on all correspondence, including any attachments. DEA encourages that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
Please be aware that submitted comments are not instantaneously available for public view on
Scott A. Brinks, Regulatory Drafting and Policy Support Section, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152, Telephone: (571) 776-3882.
Please note that all comments received in response to this docket are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement Administration (DEA) for public inspection online at
The Freedom of Information Act applies to all comments received. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be made publicly available, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want made publicly available in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment.
Comments containing personal identifying information or confidential business information identified and located as directed above will generally be made available in redacted form. If a comment contains so much confidential business information or personal
An electronic copy of this document is available at
Section 306 of the Controlled Substances Act (21 U.S.C. 826) requires the Attorney General to establish production quotas for each basic class of controlled substances listed in schedules I and II, and for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine. The Attorney General has delegated this function to the Administrator of DEA pursuant to 28 CFR 0.100.
The proposed 2023 aggregate production quotas (APQ) and assessment of annual needs represent those quantities of schedule I and II controlled substances, and the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, to be manufactured in the United States (U.S.) in 2023 to provide for the estimated medical, scientific, research, and industrial needs of the United States, lawful export requirements, and the establishment and maintenance of reserve stocks. These quotas include imports of ephedrine, pseudoephedrine, and phenylpropanolamine, but do not include imports of controlled substances for use in industrial processes.
In determining the proposed 2023 aggregate production quotas, the Administrator has taken into account the criteria of 21 U.S.C. 826(a) and 21 CFR 1303.11, including the following seven factors:
(1) Total net disposal of the class by all manufacturers during the current and two preceding years;
(2) Trends in the national rate of net disposal of the class;
(3) Total actual (or estimated) inventories of the class and of all substances manufactured from the class, and trends in inventory accumulation;
(4) Projected demand for such class as indicated by procurement quotas requested pursuant to [21 CFR] 1303.12;
(5) The extent of any diversion of the controlled substance in the class;
(6) Relevant information obtained from the Department of Health and Human Services (HHS), including from the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and the Centers for Medicare and Medicaid Services (CMS), and relevant information obtained from the states; and
(7) Other factors affecting medical, scientific, research, and industrial needs of the United States and lawful export requirements, as the Administrator finds relevant, including changes in the currently accepted medical use in treatment with the class or the substances manufactured from it, the economic and physical availability of raw materials for use in manufacturing and for inventory purposes, yield and stability problems, potential disruptions to production (including possible labor strikes), and recent unforeseen emergencies such as floods and fires.
DEA formally solicited input from FDA and CDC in February of 2022 and from the states in April 2022, as required by 21 U.S.C. 826 and 21 CFR part 1303. DEA did not solicit input from CMS for reasons discussed in previous notices (
In similar fashion, in determining the proposed 2023 assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, the Administrator has taken into account the criteria of 21 U.S.C. 826(a) and 21 CFR 1315.11, including the five following factors:
(1) Total net disposal of the chemical by all manufacturers and importers during the current and two preceding years;
(2) Trends in the national rate of net disposal of each chemical;
(3) Total actual (or estimated) inventories of the chemical and of all substances manufactured from the chemical, and trends in inventory accumulation;
(4) Projected demand for each chemical as indicated by procurement and import quotas requested pursuant to [21 CFR] 1315.32; and
(5) Other factors affecting medical, scientific, research, and industrial needs in the United States, lawful export requirements, and the establishment and maintenance of reserve stocks, as the Administrator finds relevant, including changes in the currently accepted medical use in treatment with the chemicals or the substances manufactured from them, the economic and physical availability of raw materials for use in manufacturing and for inventory purposes, yield and stability problems, potential disruptions to production (including possible labor strikes), and recent unforeseen emergencies such as floods and fires.
In determining the proposed 2023 assessment of annual needs, DEA used the calculation methodology previously described in the 2010 and 2011 assessments of annual needs (74 FR 60294, Nov. 20, 2009, and 75 FR 79407, Dec. 20, 2010, respectively).
In accordance with 21 CFR part 1303, 21 U.S.C. 826, and 42 U.S.C. 242, HHS continues to provide DEA with estimates of the quantities of select schedule I and II controlled substances and three list I chemicals that will be required to meet the legitimate medical needs of the United States for a given calendar year. The responsibility to provide these estimates of legitimate domestic medical needs resides with FDA. FDA provides DEA with predicted estimates of domestic medical usage for selected controlled substances based on information available to them at a specific point in time in order to meet statutory requirements.
FDA predicts that levels of medical need for schedule II opioids in the United States in calendar year 2023 will decline on average 5.3 percent from calendar year 2022 levels. These declines are expected to occur across a variety of schedule II opioids including fentanyl, hydrocodone, hydromorphone, oxycodone, and oxymorphone. DEA considered the potential for diversion of schedule II opioids, as required by 21 CFR 1303.11(b)(5), as well as a potential increase in demand for certain opioids identified as being necessary to treat ventilated patients with COVID-19, pursuant to 21 CFR 1303.11(b)(7), in the proposed 2023 aggregate production quotas.
FDA predicted less than a 0.1 percent decline in domestic medical use of the schedule II stimulants amphetamine, methylphenidate (including
DEA has grown increasingly concerned over the forces that may be impacting the misuse of prescription stimulants among young adults, which coincides with an increase in demand for illicit methamphetamine and cocaine. These medications are all placed in schedule II because of their high abuse liability and associated risk of addiction. Due to the expansion of diagnostic criteria and treatment of ADHD, the domestic demand for these products (in terms of prescriptions written) has increased over the past two decades and so have the number of FDA approved drug products used to treat the condition. For example, Concerta (long-acting methylphenidate) was introduced in 2000, Ritalin LA (methylphenidate) in 2002, Adderall (dextroamphetamine saccharate, amphetamine aspartate, dextroamphetamine sulfate, and amphetamine sulfate) in 2002, and Vyvanse (lisdexamfetamine) in 2007. Patients respond in different ways to different medications; therefore, a variety of products to treat ADHD are available now, but domestic demand is no longer increasing as it was in the past.
Stimulants prescribed to treat ADHD are some of the most diverted drugs among those adolescents that are at risk of substance abuse and dependence.
There has been a significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes. DEA has received and subsequently approved new registration applications for schedule I researchers and new applications for registration from manufacturers to grow, synthesize, extract, and prepare dosage forms containing specific schedule I hallucinogenic substances for clinical trial purposes. DEA supports regulated research with schedule I controlled substances, as evidenced by increases proposed for 2023 as compared with aggregate production quotas for these substances in 2022. Further, DEA published the final rule, “Controls to Enhance the Cultivation of Marihuana for Research in the United States” in December 2020, and the agency continues to review and approve applications for schedule I manufacturers of marihuana that conform to the federal requirements contained in the CSA.
For the factors listed in 21 CFR 1303.11(b)(3) and (4), DEA registered manufacturers of controlled substances in schedules I and II provided information by submitting their individual data to DEA database systems used for reporting inventory, and for distribution, manufacturing, and estimated quota requirements to meet sales forecasts, for each class of controlled substance.
The regulation at 21 CFR 1303.11(b)(5) requires DEA to consider the extent of diversion of controlled substances.
In this proposed 2023 aggregate production quota, DEA also considered the effects of the COVID-19 pandemic, pursuant to 21 CFR 1303.11(b)(7), relative to the continued increase in demand for opioids necessary to treat ventilated patients.
DEA is required:
In establishing any quota . . ., or any procurement quota established by [DEA] by regulation, for fentanyl, oxycodone, hydrocodone, oxymorphone, or hydromorphone (in this subsection referred to as a “covered controlled substance”), [to] estimate the amount of diversion of the covered controlled substance that occurs in the United States.
In estimating diversion under that provision, DEA:
(i) shall consider information, in consultation with the Secretary of Health and Human Services, [it] determines reliable on rates of overdose deaths and abuse and overall public health impact related to the covered controlled substance in the United States; and
(ii) may take into consideration whatever other sources of information [it] determines reliable.
The statute further mandates that DEA “make appropriate quota reductions, as determined by [DEA], from the quota [it] would have otherwise established had such diversion not been considered.”
In estimating the amount of diversion of each covered controlled substance that occurs in the United States, DEA considered information from state PDMP Administrators and from legitimate distribution chain participants.
Pursuant to 21 CFR 1303.11(b)(6), DEA requested state PDMP data for the purpose of establishing its aggregate production quotas. DEA believes state PDMPs to be an essential, reliable source of information for use in effectively estimating diversion of the five covered controlled substances. In April 2022, DEA sent a letter to NASCSA requesting its assistance in obtaining aggregated PDMP data for the five covered controlled substances from each state covering the years 2019-2021. The letter indicated that DEA was specifically interested in an analysis of prescription data from each state's PDMP that would assist DEA in estimating diversion and setting appropriate quotas in compliance with 21 U.S.C. 826(i). In its request, DEA provided specific questions, discussed in detail below, based on common indicia of potential diversion known as “red flags” by physicians, pharmacists, manufacturers, distributors, and federal and state regulatory and law enforcement agencies.
DEA requested responses from state PDMP Administrators by June 1, 2022. NASCSA disseminated DEA's request to its PDMP Administrators and provided them with a report tool to ensure that responses to DEA's questions were extracted consistently across all responsive states. Twenty-seven states and three territories provided DEA with summarized PDMP data between April 12 and June 27, 2022, utilizing the standardized report developed by NASCSA.
Pharmacies are required by state law to enter controlled substance dispensing data into the state's PDMP database, including the prescriber's name, registered address and DEA number; prescription information (such as drug name); dispensing date; dosage dispensed; pharmacy registered address; and patient name and address. DEA considers PDMP data to be an accurate representation of dispensing activities in states. DEA received data for the following red-flag metrics:
• The total number of patients who saw three or more prescribers in a 90-day period and were dispensed an opioid following each visit. For this metric, DEA requested and was provided the number of prescriptions for the five covered controlled substances dispensed to these patients, as a percentage of the total prescriptions dispensed for that particular covered controlled substance, as well as the corresponding quantity of the covered controlled substance dispensed. This metric (patients being prescribed covered controlled substances from three or more prescribers in a 90-day period) is used to identify potential doctor shopping, a common technique to obtain a high number of controlled substances, which may lead to abuse or diversion of controlled substances. DEA has long considered doctor shopping to be an indicator of potential diversion.
• The number of patients that were dispensed prescriptions for each of the five covered controlled substances that exceeded 240 morphine milligram equivalents (MME) daily. States provided the raw number of such prescriptions dispensed, the number of prescriptions as a percentage of the total covered controlled substance prescriptions dispensed, and the corresponding quantity of the covered controlled substance dispensed. The CDC has advised prescribers to avoid increasing dosages of opioids beyond 90 MME for patients with chronic pain.
• The number of patients that paid cash for covered controlled substance prescriptions, without submitting for insurance reimbursement.
DEA received PDMP data from the states in a standardized format that allowed DEA to aggregate the data. The PDMP data sample represents a population of approximately 125.9
While PDMP data is useful in estimating diversion, it is not conclusive. Further investigation would be required before concluding that any of the subject prescriptions were actually diverted. DEA continues to evaluate its methodologies in estimating diversion in an effort to adjust quotas more efficiently. State participation is crucial to accurate data analysis, and DEA anticipates working closely with states, as well as other federal and state entities, in future quota determinations.
To calculate a national diversion estimate for each of the covered controlled substances from the responses received from state PDMP Administrators, DEA relied upon the number of individuals who received a prescription for a covered controlled substance that met any of the three diversion metrics for each of calendar years 2019-2021. Using the population of the states responding to DEA's request, DEA then calculated the percentage of the population issued a prescription with a red flag. Using this estimated percentage for 2019-2021, DEA analyzed trends in the data to predict the estimated percentage of patients who would be expected to meet these diversion metrics for 2023.
DEA also reviewed aggregate sales data for each of the covered controlled substances, which it extracted from IQVIA's National Sales Perspective.
To estimate diversion for each of the covered controlled substances, DEA multiplied the forecasted percentage of patients likely to receive a prescription for a covered controlled substance that meet any of the three diversion-related metrics in 2023 by the forecasted sales data from IQVIA for 2023. The resulting estimate of diversion from data submitted by state PDMP Administrators is summarized below in Table 1b. This data contributed to the final diversion estimate set forth in Table 3.
DEA extracted data from its Theft Loss Report database and categorized it by each basic drug class. DEA calculated the estimated amount of diversion by multiplying the quantity of API in each finished dosage form by the total amount of units reported stolen or lost to estimate the metric weight in grams of the controlled substance being diverted. This estimate of diversion from the legitimate supply chain for each of the covered controlled substances is displayed in Table 2. This data contributed to the final diversion estimates set forth in Table 3.
In accordance with 21 U.S.C. 826(i), DEA's estimate of diversion for the five controlled substances was calculated by combining the values in Tables 1b and 2. DEA reduced the aggregate production quotas for each covered controlled substance by the quantities listed in Table 3.
The Administrator, therefore, proposes to establish the 2023 aggregate production quotas for certain schedule I and II controlled substances and assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, expressed in grams of anhydrous acid or base, as follows:
The Administrator further proposes that aggregate production quotas for all other schedule I and II controlled substances included in 21 CFR 1308.11 and 1308.12 remain at zero.
These proposed 2023 quotas reflect the quantities that DEA believes are necessary to meet the estimated medical, scientific, research, and industrial needs of the United States, including any increase in demand for certain controlled substances used to treat patients with COVID-19; lawful export requirements; and the establishment and maintenance of reserve stocks. DEA remains committed to conducting continuous surveillance on the supply of schedule II controlled substances and list I chemicals necessary to treat patients with COVID-19, and, pursuant to her authority, the Administrator will move swiftly and decisively to increase any 2023 aggregate production quota that she determines is necessary to address an unforeseen increase in demand, should that occur.
In accordance with 21 CFR 1303.13 and 1315.13, upon consideration of the relevant factors, the Administrator may adjust the 2023 aggregate production quotas and assessment of annual needs as needed. These assessments are subject to reevaluation pursuant to 21 U.S.C. 826 and 21 CFR 1303.13(a)-(b).
After consideration of any comments or objections, or after a hearing, if one is held, the Administrator will issue and publish in the
This document of the Drug Enforcement Administration was signed on October 13, 2022, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the
Drug Enforcement Administration, Justice.
Notice of application.
Organic Standards Solutions International, LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before November 17, 2022. Such persons may also file a written request for a hearing on the application on or before November 17, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on September 20, 2022, Organic Standards Solutions International, LLC, 7290 Investment Drive, Unit B, North Charleston, South Carolina 29418-8305, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances to produce analytical reference standards for sale and distribution to its customers. Drug codes 7350 (Marihuana Extract) and 7360 (Marihuana) will be used for the manufacture of cannabidiol only. In reference to drug codes 7370 (Tetrahydrocannabinols) the company plans to import a synthetic version of this controlled substance. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Executive Office for Immigration Review, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Executive Office for Immigration Review, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until November 17, 2022.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041, telephone: (703) 305-0289. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20530 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and/or
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
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Agency Sponsor: Executive Office for Immigration Review, United States Department of Justice.
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If additional information is required contact: Robert Houser, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, Suite 3E.206, Washington, DC 20530.
Office on Violence Against Women, Department of Justice.
60-Day notice.
The Office on Violence Against Women (OVW), Department of Justice will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 19, 2022.
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Sponsor: Office on Violence Against Women, U.S. Department of Justice,
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If additional information is required contact: Robert Houser, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, 3E.206, Washington, DC 20530.
On October 12, 2022, the Department of Justice lodged with the United States District Court for the Western District of Michigan a proposed Seventh Modification of Consent Decree (“Seventh Modification”) in the lawsuit entitled
On May 23, 2017, the United States District Court for the Western District of Michigan approved and entered a Consent Decree that resolved specified claims asserted by the United States against Enbridge Energy, Limited Partnership and eight affiliated entities (“Enbridge”) under the Clean Water Act and Oil Pollution Act arising from two separate 2010 oil spills resulting from failures of Enbridge oil transmission pipelines near Marshall, Michigan and Romeoville, Illinois. The complaint filed by the United States alleged that Enbridge's pipelines had unlawfully discharged oil into waters of the United States and sought civil penalties, recovery of removal costs, and injunctive relief. The Consent Decree established various requirements applicable to a network of 14 pipelines that comprise Enbridge's Lakehead System—including dig selection criteria governing excavation, repair or mitigation, and imposition of interim pressure restrictions for various features, such as dents, corrosion and cracks, that are detected through In-Line Inspections (“ILI”) of such pipelines. Because certain of these dig selection criteria are based in part on the Established Maximum Operating Pressure (“EMOP”) applicable to the pipeline location where the particular feature is located, the Consent Decree incorporated by reference EMOP values established for each of the pipelines subject to the Consent Decree.
The proposed Seventh Modification would revise provisions of the Consent Decree relating to four main areas. First, the proposed modification would establish requirements and procedures under which Enbridge may seek Partial Termination of specified obligations under the Consent Decree while it remains subject to, and continues to implement, other Consent Decree requirements that are not eligible for Partial Termination. Second, the proposed Seventh Modification would explicitly designate specified pipeline segments on Line 61 and Line 62 as “Replacement Segments” that are subject to some additional leak detection system-related requirements under the Consent Decree. The Modification requires Enbridge to maintain existing temperature and pressure sensing instrumentation on the newly-designated Replacement Segments but clarifies that Enbridge is not required to install instrumentation on the newly designated Replacement Segments. Third, the proposed Seventh Modification establishes deadlines applicable to the resumption of In-Line Inspections (ILIs) on Line 62 following a long period when that pipeline was not in service. Finally, in light of information developed following the 2017 hydrostatic pressure tests on a segment of Line 5 that crosses the Straits of Mackinac (generally referred to as the “Dual Pipelines”), the proposed Seventh Modification would confirm that Enbridge will not be required to perform any axial crack ILI on the Dual Pipelines and associated piping prior to expiration of a time period that corresponds to one-half of the estimated remaining fatigue life of the worst potential axial Crack feature that could have survived the 2017 hydrostatic pressure tests. The Modification does not limit Enbridge's ability to contend that an axial crack ILI is not required on the Dual Pipelines following expiration of the time period referred to above.
The publication of this notice opens a period for public comment on the proposed Seventh Modification of 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 proposed Seventh Modification of Consent Decree may be examined and downloaded at this Justice Department website:
In requesting a paper copy, please enclose a check or money order for $8.50 (25 cents per page reproduction cost) payable to the United States Treasury.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of MACOSH meeting.
The Maritime Advisory Committee on Occupational Safety and Health (MACOSH) will meet on November 16 and 17, 2022.
The MACOSH Shipyard and Longshoring Workgroups will meet from 9:30 a.m. to 4 p.m., ET on November 16, 2022.
MACOSH will meet from 9:30 p.m. to 4 p.m., ET, Thursday, November 17, 2022. The meeting is open to the public.
The tentative agenda for the full Committee will include reports from the Shipyard and Longshoring workgroups, including discussions on the use of ventilation in shipyard employment, employee training, and the rescue of persons in the water. The Committee will also receive updates from the Office of the Assistant Secretary, the Directorate of Standards and Guidance, and the Directorate of Enforcement Programs.
Public attendance at the MACOSH Committee and Workgroup meetings will be virtual only. Meeting information will be posted in the Docket (Docket No. OSHA-2020-0010) and on the MACOSH web page,
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice under the authority granted by 29 U.S.C. 655(b)(1) and 656(d), 5 U.S.C. App. 2, Secretary of Labor's Order No. 8-2020 (85 FR 58393), and 29 CFR part 1912.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Biological and Physical Sciences Advisory Committee. This Committee reports to the Director, Astrophysics Division, Science Mission Directorate, NASA Headquarters. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Tuesday, November 15, 2022, 11 a.m.-6 p.m., Wednesday, November 16, 2022, 11 a.m.-6 p.m., eastern time.
Meeting will be virtual only. See Webex and audio dial-in information below under
Mrs. KarShelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355, or
As noted above, this meeting is virtual and will take place telephonically and via Webex. Any interested person must use a touch-tone phone to participate in this meeting. The Webex connectivity information for each day is provided below. For audio, when you join the Webex event, you may use your computer or provide your phone number to receive a call back, otherwise, call the U.S. toll conference number listed for each day.
On Tuesday, November 15, the event address for attendees is:
To join by telephone, the numbers are: 1-929-251-9612 or 1-415-527-5035. Access code: 2762 360 2352
On Wednesday, November 16, the event address for attendees is:
To join by telephone, the numbers are: 1-929-251-9612 or 1-415-527-5035. Access code: 2763 691 6946
The agenda for the meeting includes the following topics:
The agenda will be posted on the Biological and Physical Sciences Advisory Committee web page:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
10:00 a.m., October 20, 2022.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
This meeting will be open to the public.
1. Board Briefing, Cybersecurity.
2. Board Briefing, Central Liquidity Fund.
3. NCUA Risk Appetite Statement.
Melane Conyers-Ausbrooks, Secretary of the Board, Telephone: 703-518-6304.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “NRC Policy Statement, “Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement,” Maintenance of Existing Agreement State Programs, Requests for Information Through the Integrated Materials Performance Evaluation Program (IMPEP) Questionnaire, and Agreement State Participation in IMPEP.”
Submit comments by December 19, 2022. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2022-0067 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an Order to Steel City Gamma, LLC, imposing a civil monetary penalty of $25,600. The NRC determined that two willful violations of NRC regulations occurred as identified during an investigation by the NRC's Office of Investigations that was completed on March 1, 2021. The violations involved Steel City Gamma's failure to file for reciprocity prior to performing work in NRC jurisdiction and Steel City Gamma's performance of licensed activities in NRC jurisdiction without a valid NRC or Agreement State license. This order is effective on the date of issuance.
The Order was issued on October 11, 2022.
Please refer to Docket ID NRC-2022-0168 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Leelavathi Sreenivas, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-001; telephone: 301-287-9249, email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
Steel City Gamma, LLC (Steel City Gamma) was an industrial radiography company located in Pennsylvania. From May 14, 2019, until September 2020, Steel City Gamma was authorized under the Commonwealth of Pennsylvania radioactive materials license No. PA-1633 to possess and utilize byproduct material in up to three (3) devices for the purposes of industrial radiography. During the relevant time periods discussed below, Steel City Gamma did not possess a specific license issued by the Nuclear Regulatory Commission (NRC) under Title 10 of the
U.S. NRC Office of Investigations (OI) initiated an investigation on April 21, 2020, to determine whether Steel City Gamma deliberately conducted unauthorized and/or unlicensed radiography activities within NRC jurisdiction. The investigation concluded that two violations of NRC requirements occurred and that those violations were willful. During a closed predecisional enforcement conference held on February 3, 2022, Steel City Gamma acknowledged the violations and stated that it would no longer conduct industrial radiography and intended to withdraw the application for an NRC license for another company, A & B Testing.
A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon Steel City Gamma by letter dated March 2, 2022. The Notice stated the nature of the violations, the provisions of the NRC's requirements that the Steel City Gamma violated, and the amount of the civil penalty proposed for the violations. As of the date of this Order, Steel City Gamma has not responded to the Notice, paid the civil penalty, or requested more time to do so.
Because Steel City Gamma did not response to the Notice, there are no additional facts, explanations, or other information to consider. The NRC staff has determined that the violations occurred as stated in the Notice and that the penalty proposed for the violations identified in the Notice should be imposed.
In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205,
Steel City Gamma shall pay the civil penalty in the amount of $25,600 within 30 days of the date of this Order through one of the following two methods:
1. Submit the payment with Civil Penalty Invoice No. EA-21-045 to the following address: Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, P.O. Box 979051, St. Louis, MO 63197, or
2. Submit the payment in accordance with NUREG/BR-0254, “Payment Methods.”
In addition, at the time payment is made, Steel City Gamma shall submit a statement indicating when and by what method payment was made to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.
Steel City Gamma and any other person adversely affected by this Order may request a hearing on this Order within 30 days of the date of the Order. Where good cause is shown, consideration will be given to extending the time to answer or request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, and include a statement of good cause for the extension.
All documents filed in NRC adjudicatory proceedings including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases, to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056) and on the NRC's public website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
If a person other than Steel City Gamma requests a hearing, that person shall set forth
If a hearing is requested by Steel City Gamma or any other person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 30 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received. If payment has not been made by the date the provisions of this Order become final, the matter may be referred to the Attorney General for collection.
For the Nuclear Regulatory Commission.
Dated this 11th day of October 2022.
Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from May 1, 2022, to May 31, 2022.
Julia Alford, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No Schedule A Authorities to report during May 2022.
No Schedule B Authorities to report during May 2022.
The following Schedule C appointing authorities were approved during May 2022.
The following Schedule C appointing authorities were revoked during May 2022.
Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from June 1, 2022, to June 30, 2022.
Julia Alford, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-936-3085.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No Schedule A Authorities to report during June 2022.
No Schedule B Authorities to report during June 2022.
The following Schedule C appointing authorities were approved during June 2022.
The following Schedule C appointing authorities were revoked during June 2022.
Office of Personnel Management.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend Nasdaq's program providing Eligible Companies with complimentary board recruiting services.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to extend its program, described in IM-5900-9, providing Eligible Companies
(a) any listed Company, except as described below, that represents to Nasdaq that it does not have (i) at least one director who self-identifies as female; and (ii) at least one director who self-identifies as one or more of the following: Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, or Two or More Races or Ethnicities, or who self-identifies as lesbian, gay, bisexual, transgender or as a member of the queer community;
(b) a listed Company that (i) is a Foreign Private Issuer (as defined in Rule 5005(a)(19), or (ii) is considered a foreign issuer under Rule 3b-4(b) under the Act and has its principal executive offices located outside of the United States, if it represents to Nasdaq that it does not have (i) at least one director who self-identifies as female; and (ii) at least one director who self-identifies as one or more of the following: female, an underrepresented individual based on national, racial, ethnic, indigenous, cultural, religious or linguistic identity in the country of the company's principal executive offices, or lesbian, gay, bisexual, transgender or as a member of the queer community; or
(c) a listed Company that is a Smaller Reporting Company (as defined in Rule 12b-2 under the Act), if it represents to Nasdaq that it does not have (i) at least one director who self-identifies as female, and (ii) at least one director who self-identifies as one or more of the following: female, Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, or Two or More Races or Ethnicities, or who self-identifies as lesbian, gay, bisexual, transgender or as a member of the queer community.
Under IM-5900-9,
Currently, Eligible Companies may request the board recruiting complimentary service on or before December 1, 2022. After evaluating the service and progress made in enhancing diversity, Nasdaq proposes to extend the program until December 1, 2023. Under Nasdaq Rule 5605(f)(7), the earliest that a Nasdaq listed company will need to explain why it does not have at least one Diverse
In addition, Nasdaq proposes to update the reference in Nasdaq Rule IM-5900-9 to Nasdaq's proposed rule contained in SR-Nasdaq-2020-081, as it pertains to the Diverse Board Representation, to instead reference the approved Nasdaq Rule 5605(f). This change is non-substantive, and clarifies the rules.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
Nasdaq believes that research surrounding the value of diversity on a company's board and investor interest in more diverse boards
Under Nasdaq Rule 5605(f), companies will have until August 6, 2023 to have, or explain why they do not have, at least one Diverse director and until August 6, 2025 to have, or explain why they do not have, at least two Diverse directors. Some Eligible Companies have already requested the service, other Eligible Companies may first use an alternate approach to identify a Diverse director. Therefore, to provide Eligible Companies with adequate time to determine whether to utilize the complimentary service before they first need to comply with Nasdaq Rule 5605(f), Nasdaq believes it is reasonable to extend the expiration date until December 1, 2023 to begin using the service.
Nasdaq faces competition in the market for listing services,
For these reasons, Nasdaq believes it is not an inequitable allocation of fees, unfairly discriminatory, nor an unnecessary or inappropriate burden on competition to continue to extend the offer of board recruiting solution only to Eligible Companies until December 1, 2023. Nasdaq represents that individual listed companies are not given specially negotiated packages of products or services to list, or remain listed, which the Commission has previously stated would raise unfair discrimination issues under the Exchange Act.
In addition, the proposal to reflect the approval of SR-Nasdaq-2020-081, and to directly reference the now-approved Nasdaq Rule 5605(f), is non-substantive, and simply clarifies the rules. The Exchange believes that this is consistent with Section 6(b) of the Act,
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. As noted above, Nasdaq faces competition in the market for listing services, and competes, in part, by offering valuable services to companies. The proposed rule change reflects competition, but does not impose any burden on the competition with other exchanges. Rather, Nasdaq believes that some companies will find the proposed board recruiting solution an attractive offering and therefore make listing or remaining listed on Nasdaq more attractive, which will enhance competition for listings.
Other exchanges can also offer similar services to companies, thereby increasing competition to the benefit of those companies and their shareholders. Accordingly, Nasdaq does not believe the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
In addition, the proposal to reflect the approval of Nasdaq Rule 5605(f), is non-substantive, and simply aligns the rules in a clear and consistent manner. Nasdaq does not believe this change will impose any burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 15, 2022, Cboe BZX Exchange, Inc. (“BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised therein. Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing a proposal to amend the MIAX Pearl Options Fee Schedule (the “Fee Schedule”).
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
The Exchange proposes to amend the Add/Remove Tiered Rebates/Fees set forth in Section (1)(a) of the Fee Schedule to: (1) modify the volume threshold for the alternative volume criteria for certain Maker (defined below) rebates for Non-Priority Customer, Firm, Broker-Dealer (“BD”), and Non-MIAX Pearl Market Maker origins (collectively, “Professional Members”); (2) lower the alternative Maker rebate for Professional Members in Penny Classes (defined below); and (3) modify the volume threshold for the alternative volume criteria for the lower Taker (defined below) fee for Professional Members' Firm origin when trading against origins other than Priority Customer
The Exchange currently assesses transaction rebates and fees to all market participants which are based upon the total monthly volume executed by the Member
The Exchange proposes to amend footnote “^” below the tables in the Add/Remove Tiered Rebates/Fees section set forth in Section (1)(a) of the Fee Schedule to decrease the affiliated Priority Customer threshold in order for Members to qualify for alternative Maker rebates for options transactions in all classes for Professional Members, provided that the Member meets certain volume criteria. Currently, Professional Members may qualify for Maker rebates equal to the greater of: (A) ($0.40) for Penny Classes and ($0.65) for Non-Penny Classes, or (B) the amount set forth in the applicable Tier reached by the Member in the relevant origin, if the Member and their Affiliates execute at least 2.25% volume in the relevant month, in Priority Customer origin type, in all options classes, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl listed option classes.
The Exchange proposes to decrease the affiliated Priority Customer threshold percentage amount in footnote “^” in order for Members to qualify for the alternative Maker rebates for their Professional Members. The threshold will change from at least 2.25% to at least 1.25% volume in the relevant month, in Priority Customer origin type, in all options classes, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl listed option classes. For purposes of qualifying for such rates, the Exchange will continue
The Exchange also proposes to amend footnote “^” to decrease the alternative Maker rebate for Professional Members in Penny Classes. As described above, footnote “^” provides that Members may achieve an alternative Maker rebate of ($0.40) in Penny Classes if a certain volume threshold is achieved in the Priority Customer origin type, in all options classes, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl listed option classes. The Exchange now proposes to decrease this Maker rebate from ($0.40) to ($0.37). Accordingly, with both of the proposed changes to footnote “^,” Members may qualify for Maker rebates equal to the greater of: (A) ($0.37) for Penny Classes and ($0.65) for Non-Penny Classes, or (B) the amount set forth in the applicable Tier reached by the Member in the relevant origin, if the Member and their Affiliates execute at least 1.25% volume in the relevant month, in Priority Customer origin type, in all options classes, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl listed option classes.
The purpose of adjusting the specified Maker rebate is for business and competitive reasons. In order to attract order flow, the Exchange initially set its Maker rebates so that they were higher than other options exchanges that operate comparable maker/taker pricing models.
The Exchange proposes to amend footnote “⋄” below the tables in the Add/Remove Tiered Rebates/Fees section set forth in Section (1)(a) of the Fee Schedule to decrease the affiliated Priority Customer threshold in which Members may qualify for alternative lower Taker fee for options transactions in Penny Classes for Professional Members' Firm origin, provided that the Member meets certain volume criteria. Currently, Professional Members may qualify for the alternative lower Taker fee for their Firm origin of $0.48 in Penny Classes when trading against origins other than Priority Customer if the Member and their Affiliates execute at least 2.25% of TCV in the relevant month in the Priority Customer origin type, in all options classes, not including Excluded Contracts, as compared to TCV in all MIAX Pearl listed option classes.
The Exchange proposes to decrease the affiliated Priority Customer threshold percentage amount in footnote “⋄” in order for Members' Firm origin to qualify for the alternative lower Taker fee. The threshold will change from at least 2.25% to at least 1.25% of TCV in the relevant month, in Priority Customer origin type, in all options classes, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl listed option classes. As the amount and type of volume that is executed on the Exchange has shifted since it first established the alternative Taker fee,
The proposed changes are effective beginning October 1, 2022.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its
There are currently 16 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, as of September 26, 2022, no single exchange has more than approximately 10-11% equity options market share for the month of September 2022.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can discontinue or reduce use of certain categories of products and services, terminate an existing membership or determine to not become a new member, and/or shift order flow, in response to transaction fee changes. For example, on February 28, 2019, the Exchange filed with the Commission a proposal to increase Taker fees in certain Tiers for options transactions in certain Penny classes for Priority Customers and decrease Maker rebates in certain Tiers for options transactions in Penny classes for Priority Customers (which fee was to be effective March 1, 2019).
The Exchange believes its proposal to decrease the Priority Customer threshold for alternative Maker rebates for options transactions in all classes for Professional Members, provided that the Member meets certain volume criteria is reasonable, equitable and not unfairly discriminatory because all similarly situated market participants are subject to the same tiered rebates and fees. The Exchange believes that providing alternative Maker rebates for options transactions in all classes for Professional Members (if the Member meets certain volume criteria relating to Priority Customer volume), and adjusting the threshold requirement so that it is reflective of current operating conditions and the current type and amount of volume executed on the Exchange, will encourage Members to execute additional Priority Customer and Professional Member volume on the Exchange. The Exchange believes that additional Priority Customer and Professional Member volume executed on the Exchange will attract further liquidity to the Exchange, which in turn will benefit all market participants.
The Exchange believes its proposal to decrease the alternative Maker rebate for Professional Members in Penny Classes is reasonable, equitable and not unfairly discriminatory because all similarly situated market participants are subject to the same tiered rebates and fees. In order to attract order flow, the Exchange initially set its Maker rebates so that they were higher than other options exchanges that operate comparable maker/taker pricing models.
The Exchange believes its proposal to decrease the Priority Customer threshold for the alternative lower Taker fee for Professional Members' Firm origin, provided that the Member meets certain volume criteria is reasonable, equitable and not unfairly discriminatory because all similarly situated market participants are subject to the same tiered rebates and fees. The Exchange believes that providing the lower alternative Taker fee for Professional Members Firm origin (if the Member meets certain volume criteria relating to Priority Customer volume), and adjusting the threshold requirement so that it is reflective of current operating conditions and the current type and amount of volume executed on the Exchange, will encourage Members to execute additional Priority Customer and Professional Member volume on the Exchange. The Exchange believes that additional Priority Customer and Professional Member volume executed on the Exchange will attract further liquidity to the Exchange, which in turn will benefit all market participants.
The Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed change to lower the volume threshold for the alternative volume criteria for certain Maker rebates for Professional Members should continue to encourage the provision of liquidity that enhances the quality of the Exchange's market and increase the number of trading opportunities on the Exchange for all participants who will be able to compete for such opportunities. Similarly, the Exchange believes that the proposed change to lower the volume threshold for the alternative volume criteria for the lower Taker fee for Professional Members' Firm origin should continue to encourage the provision of liquidity that enhances the quality of the Exchange's market and increase the number of trading opportunities on the Exchange for all participants who will be able to compete for such opportunities. These proposed changes should enable the Exchange to continue to attract and compete for Professional Member and Priority Customer order flow with other exchanges. However, this competition does not create an undue burden on competition but rather offers all market participants the opportunity to receive the benefit of competitive pricing.
The Exchange believes the proposed Maker rebate adjustment is intended to keep the Exchange's rebates highly competitive with those of other exchanges, and to encourage liquidity and should enable the Exchange to continue to attract and compete for order flow with other exchanges. 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. In such an environment, the
Written comments were neither solicited nor 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.
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 were not assessed until this year. Prior to this year, MRX did not assess its Members any port fees. MRX launched its options market in 2016
The proposed changes are designed to update fees for MRX's services to reflect their current value—rather than their value when it was established six years ago—based on MRX's ability to deliver
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—indeed, as of the date of the initial filing of these port fees, MRX was the only options exchange (out of the 16 current options exchanges) not assessing port fees. 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, through one port to MRX. Members may elect to obtain multiple account numbers to organize their business, however only one account number and one port for orders and one port for quotes is necessary for a Member to trade on MRX.
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 assessed no additional port fees in a given 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.
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.' ”
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
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 basis,
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
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
The Exchange does not believe that the proposed rule change will impose any intermarket 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. Additionally, the proposed port fees are similar to port fees assessed by GEMX
Further, in connection with a technology migration, Cboe Exchange, Inc. (“Cboe”) amended access and connectivity fees, including port fees.
The proposal also referenced the National Market System Plan Governing the Consolidated Audit Trail (“CAT NMS Plan”),
Cboe concluded that the Exchange is subject to significant substitution-based competitive forces in pricing its connectivity and access fees.
Cboe also filed to establish a monthly fee for Certification Logical Ports of $250 per Certification Logical Port.
In its statutory basis, Cboe justified the new port fee by stating that it believed the Certification Logical Port fee were reasonable because while such ports were no longer completely free, TPHs and non-TPHs would continue to be entitled to receive free of charge one Certification Logical Port for each type of logical port that is currently offered in the production environment.
The Cboe fee proposals described herein were filed subsequent to the D.C. Circuit decision in Susquehanna Int'l Grp., LLC v. SEC, 866 F.3d 442 (D.C. Cir. 2017), meaning that such fee filings were subject to the same (and current) standard for SEC review and approval as SR-MRX-2022-12[sic]. In summary, MRX requests the Commission apply the same standard of review to SR-MRX-2022-12[sic] which was applied to the various Cboe and Cboe affiliated markets' filings with respect to port fees. If the Commission were to apply a different standard of review to MRX-2022-12[sic] than it applied to other exchange fee filings it would create a burden on competition such that it would impair MRX's ability to compete among other options markets.
The Exchange does not believe that the proposed rule change will impose any intramarket burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Only one order protocol is required to submit orders to MRX, and the Exchange proposes to offer the first FIX Port and the first FIX Disaster Recovery Port to Electronic Access Members at no cost. This would provide Members with the ability to continuously submit orders to MRX, even in the event of a failover. Likewise, only one quoting protocol is required to submit quotes to MRX, and the Exchange proposes to offer the first SQF Port and the first SQF Disaster Recovery Port to Market Makers at no cost. This would provide Market Makers with the ability to continuously submit quotes to MRX, even in the event of a failover. 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 an application under Section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from Section 15(c) of the Act.
Hearing requests should be received by the Commission by 5:30 p.m. on November 7, 2022, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by emailing the Commission's Secretary.
The Commission:
Deepak T. Pai, Senior Counsel, or Lisa Reid Ragen, 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 application, dated September 30, 2022, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend MRX's Pricing Schedule at Options 7, section 5 related to Membership Fees.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
MRX proposes to amend its Pricing Schedule at Options 7, section 5, Other Options Fees and Rebates, to assess membership fees, which were not assessed until this year. Prior to this year, MRX did not assess its Members any membership fees. MRX launched its options market in 2016 and Members did not pay any membership fees until 2022.
The proposed changes are designed to update fees for MRX's services to reflect their current value—rather than their value when it was a new exchange six years ago—based on MRX's ability to deliver value to its customers through technology, liquidity and functionality. Newly-opened exchanges often charge no fees for certain services such as membership, in order to attract order flow to an exchange, and later amend their fees to reflect the true value of those services.
This proposal reflects MRX's assessment that it has gained sufficient market share to compete effectively against the other 15 options exchanges without waiving fees for membership. These types of fees are assessed by options exchanges that compete with MRX in the sale of exchange services—indeed, as of the date of the initial filing of these membership fees, MRX was 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 were not assessed fees for membership until this year. Under the proposed fee change, MRX Members will 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 Right Fee. Under the proposed fee structure, CMMs will be assessed a CMM Trading Right Fee of $850 per month for the first trading right, which will entitle the CMM to quote in 20 percent of industry volume. Each additional CMM Trading Right will cost $500 per month, and will entitle the CMM to quote an additional 10 percent of volume. Similar to GEMX's trading rights fee,
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
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.
With respect to Market Makers submitting quotes on MRX, 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 (
The Exchange does not believe that it is unfairly discriminatory to assess different fees for EAMS, PMMs, and CMMs. While PMMs would pay lower membership fees as compared to CMMs, 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.
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.
The Exchange believes that it is reasonable to assess CMMs a CMM Trading Right Fee because these Market Makers are not required to enter quotations in the options classes to which it is appointed unless the CMM initiates quoting in an options class.
The Exchange believes that it is equitable and not unfairly discriminatory to assess only CMMs a CMM Trading Right Fee. While there can be multiple CMMs in an options series, there is only one PMM assigned per options series. Unlike PMMs who must open each option series to which they are assigned,
Similar to recent proposal by BOX Exchange LLC (“BOX”),
As noted above, one MRX Member cancelled their membership on MRX as well as nine CMM Trading Rights.
Membership fees were charged by all options exchanges except MRX until May 2, 2022. In 2022, similar to MRX, MEMX LLC (“MEMX”) commenced assessing a monthly membership fee.
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
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 membership on other exchanges, and therefore,
The Exchange also notes that Cboe Exchange, Inc. (“Cboe”) amended access fees
The Cboe proposal also referenced the National Market System Plan Governing the Consolidated Audit Trail (“CAT NMS Plan”),
Cboe concluded in its fee filing that the Exchange is subject to significant substitution-based competitive forces in pricing its connectivity and access fees.
MRX requests the Commission apply the same standard of review to its proposed fee change that was applied to the Cboe fee filing which permitted Cboe to amend its membership fees. If the Commission were to apply a different standard of review to MRX's membership fee filing than it applied to other exchange fee filings it would create a burden on competition such that it would impair MRX's ability to compete among other options markets. MRX's ability to assess membership fees, similar to MEMX, Cboe and all other options markets, would permit it to compete with other options markets on an equal playing field. As noted herein, MRX is the only options market that does not have membership fees until May 2, 2022.
Further, 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
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.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Florida (FEMA-4673-DR), dated 10/03/2022.
Issued on 10/11/2022.
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 President's major disaster declaration for Private Non-Profit organizations in the State of Florida, dated 10/03/2022, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Florida (FEMA-4673-DR), dated 10/03/2022.
Issued on 10/10/2022.
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 President's major disaster declaration for Private Non-Profit organizations in the State of FLORIDA, dated 10/03/2022, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for the State of New Mexico (FEMA-4652-DR), dated 05/04/2022.
Issued on 10/07/2022.
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 President's major disaster declaration for the State of New Mexico, dated 05/04/2022, is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 11/07/2022.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Puerto Rico (FEMA-4671-DR), dated 09/29/2022.
Issued on 10/07/2022.
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 President's major disaster declaration for Private Non-Profit organizations in the State of Puerto Rico, dated 09/29/2022, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for the State of Florida (FEMA-4673-DR), dated 09/29/2022.
Issued on 10/11/2022.
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 President's major disaster declaration for the State of FLORIDA, dated 09/29/2022, is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of Florida (FEMA-4673-DR), dated 09/29/2022.
Issued on 10/07/2022.
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,
The notice of the President's major disaster declaration for the State of FLORIDA, dated 09/29/2022, is hereby amended to include the following areas as adversely affected by the disaster:
Notice of request for information.
Pursuant to an Executive Order on Strengthening the Nation's Forests, Communities, and Local Economies, the Department of State is seeking public feedback on options, including recommendations for proposed legislation, for a whole-of-government approach to combating international deforestation that includes: an analysis of the feasibility of limiting or removing specific commodities grown on lands deforested either illegally, or legally or illegally after December 31, 2020, from agricultural supply chains; and an analysis of the potential for public-private partnerships with major agricultural commodity buyers, traders, financial institutions, and other actors to voluntarily reduce or eliminate the purchase of such commodities and incentivize sourcing of sustainably produced agricultural commodities.
Comments must be received on or before December 2, 2022. Early submissions are appreciated.
Send comments as a PDF or Word attachment in an email to
Melissa Gallant, Sustainable Landscapes Analyst, U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Global Change, (202) 256-1301; Christine Dragisic, Foreign Affairs Officer, U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Global Change;
Under this Executive Order, the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Homeland Security (through the Commissioner of U.S. Customs and Border Protection), the Administrator of the Small Business Administration, the Administrator of the United States Agency for International Development, the United States Trade Representative, and the Special Presidential Envoy for Climate, will submit a report to the President within one year on the above topic.
The Executive Order also references the Biden Administration's commitment to deliver, by 2030, on collective global goals to end natural forest loss and to restore at least an additional 200 million hectares of forests and other ecosystems, while showcasing new economic models that reflect the services provided by critical ecosystems around the world, as described in the
In addition to any general input, the Department is interested in responses to the questions posed below. The Department may use this information to inform potential future actions including, but not limited to, preparation of a report to the President addressing the above topics. The Department welcomes any relevant comments, including on related topics that may not be specifically mentioned but that a commenter believes should be considered.
1. Should the United States government apply tools within its authorities to limit or remove specific commodities grown on illegally deforested lands from agricultural supply chains? What are the potential benefits or negative effects of this approach?
2. Should the United States government apply tools within its authorities to limit or remove specific commodities grown on lands deforested, legally or illegally, after a specific cut-off date (for example December 31, 2020) from agricultural supply chains? What are the potential benefits or negative effects of this approach?
3. For any approach to addressing commodities grown on deforested land that focuses on lands deforested after a specific date, is December 31, 2020 the
4. For U.S.-based respondents: If trade in commodities grown on lands deforested either illegally or, (legally or illegally) after December 31, 2020 (and products containing those commodities) were prohibited in the United States, what, if any, effect would that have on your operations (
5. Which of the following approaches should the United States federal government consider following in advancing efforts to limit or remove specific commodities grown on deforested lands from agricultural supply chains: (a) tax incentives; (b) expanded application of existing regulations and authorities; (c) public procurement policy; (d) enhanced transparency on deforestation and/or commodity flows; (e) enhanced commodity traceability; (f) development of voluntary or mandatory third party or federal standards or certification programs; (g) partnerships with countries or subnational governments to address commodity-driven deforestation; (h) public-private partnerships. For each approach selected, please provide details on the most effective potential measures that might be applied, and whether new legislation or amendment of existing legislation would contribute to effective measures. For approaches not selected, please specify why such an approach is not recommended. If you believe that a modification of an approach or a different approach that is not listed here would be more effective, please describe. (Note throughout “commodities” may also be read to apply to derivative products.)
6. Which of the following substantive approaches by the U.S. federal government might be most effective in limiting or removing specific commodities grown on deforested lands from agricultural supply chains? For each approach selected, please provide details on the most effective potential measures that might be applied. For approaches not selected, please specify why such an approach is not recommended.
• Restricting the importation of commodities grown on lands deforested either illegally or after a specific cut-off date;
• Requiring covered entities to conduct due care for transparency and traceability to eliminate or minimize the risk that commodities in agricultural supply chains, or the products produced from such commodities, were grown on lands deforested either illegally or after a specific cut-off date; (Please specify how such due diligence might be conducted; whether audits of due care for transparency and traceability by independent, recognized third parties should be required; and if and how entitles would provide notice or documentation);
• Requiring covered entities to have full traceability of covered commodities. (Please specify the level of proposed traceability [
• Incentivizing the use of commodities produced in jurisdictions (
• Enhancing transparency around commodity flows and deforestation to inform investors and importers. If recommending this option, please elaborate how this could be done, benefits and limitations;
• Phasing in substantial penalties for non-compliance with any approach the federal government would take (including but not limited to those listed above) to limit or remove specific commodities grown on deforested lands from agricultural supply chains.
7. What substantive approaches by the private sector might be most effective in limiting or removing specific commodities grown on deforested lands from agricultural supply chains? For each approach, please provide details on the most effective potential measures that might be applied. Please specify if there are approaches not recommend and why.
8. For corporate respondents: Several other governments have adopted, or proposed, due care for traceability and transparency requirements to address the risk of commodity-driven deforestation. Can you provide any evidence on the cost of documenting traceability and transparency, whether related to these requirements or voluntary systems? If yes, can these costs be broken down by specific commodities? Can you provide any evidence on the benefits to businesses of documenting due care for, traceability and transparency, including for specific commodities? If yes, can these benefits be quantified? Please provide details.
9. In defining deforestation, should a single definition of forests be used? Or should ecosystem- or country-specific definitions be used, for example the definition of a forest submitted by each country to the FAO?
10. If a single definition of forests is used, which existing definition is most applicable? E.g., FAO Global Forest Resource Assessment 2020: “Land spanning more than 0.5 hectares with trees higher than 5 meters and a canopy cover of more than 10 percent, or trees able to reach these thresholds in situ” (plus explanatory notes)? Other?
11. Which existing definition of deforestation is most applicable or appropriate? E.g., FAO Global Forest Resource Assessment 2020: “The conversion of forest to other land use independently whether human-induced or not.” (plus explanatory notes) Others? How should illegal deforestation be defined?
12. For any proposed definition of deforestation (other than illegal deforestation), are there any exceptions that should be made for certain types of deforestation?
13. In assessing the feasibility of addressing commodities produced on land deforested illegally, how might legality be assessed? Which global or regional data sets might be used to identify illegally deforested lands? What process precedents exist for assessing national legal frameworks to identify the legality, or illegality, of an action? What are the benefits or limitations of such precedents and approaches? Which actors might identify illegal deforestation, and through which channels? Is this approach feasible given the diversity of legal regimes?
14. In assessing the feasibility of addressing commodities produced on land deforested after December 31, 2020, or another specific date, which global or regional data sets might be used to identify lands deforested before, or after, this date?
15. Would there be value in the United States making publicly available a map or other dataset of lands worldwide assessed to be deforested either illegally, or before a specific date? If yes, what value would this provide to relevant stakeholders? How should such a map, or dataset, be made publicly available?
16. Would there be value in the United States requiring some
17. Assessments have identified that around three-fifths of deforestation worldwide is associated with seven commodities: cattle, oil palm, soy, cocoa, coffee, wood fiber, and rubber,
18. For corporate respondents: Which harmonized tariff codes, if any, associated with cattle, oil palm, soy, cocoa, coffee, wood fiber, and rubber are associated with the commodities you import, or processed goods you manufacture or trade?
19. What entities should be covered by an approach the United States takes to address global deforestation associated with commodities? Please identify which of the following categories should be covered, and explain why each category should or should not be included: (a) direct importers; (b) commodity traders; (c) consumer goods companies; (d) retailers; (e) financers of the above companies; (f) other (please identify).
20. How could the United States most effectively address global deforestation associated with commodities, using a finite set of resources? Please explain.
(A) Focusing on the countries with the highest rates of deforestation;
(B) Focusing on the countries with the highest volume, or value, of soft commodities imported to the United States;
(C) Focusing on the tariff codes or industries associated with commodities of greatest impact?
(D) Focusing on the countries with the highest risk for illegal land clearing and deforestation based on a set of factors (
(E) Another approach to prioritizing resources?
21. Should countries be excluded or deemphasized if they: (a) maintain forest cover above a specific threshold, (b) export soft commodities to the United States below a specific threshold, and/or (c) for another reason (current forest cover, etc.)? Should tariff codes by excluded or deemphasized if they account for under a certain percent of covered commodity imports? Should there be a de minimus exception to any measure implemented? If yes to any of the above, please specify the reason and the appropriate minimum threshold.
22. Should covered entities be excluded or deemphasized if they: (a) import soft commodities to the United States below a specific threshold or volume, (b) maintain integrity of intact natural forest above a certain threshold, (c) import the covered commodities to the United States below a specific threshold or volume, (d) have U.S. revenue below a specific threshold, or (e) have global revenue below a specific threshold? Should entities with revenue below a specific threshold have simplified requirements, for example for due care for traceability and transparency? If yes, please specify the reason and the appropriate minimum threshold.
23. Some approaches to address global deforestation associated with commodities may entail traceability of commodities. In your experience, for which of the following commodities is traceability from the farm/forest/ranch level to the final product technically possible: cattle, oil palm, soy, cocoa, coffee, wood fiber, and/or rubber? At what level of precision and unit? Where it is possible, which systems are used, and what is the cost per volume (
24. For corporate respondents: To what level can you currently trace the commodities you use (
25. A number of schemes or programs have been developed for certifying the sustainability of agricultural commodities. These include both voluntary standards (
26. Which, if any, voluntary or compliance (
27. Have voluntary or compliance certification schemes been effective in reducing commodity-driven deforestation? Which ones?
28. What are the factors that contribute to the effectiveness of these certification schemes in reducing deforestation, or create obstacles that impede their effectiveness?
29. How can certification schemes be improved to ensure they are effective in reducing commodity-driven deforestation?
30. A number of public-private partnerships to reduce deforestation associated with commodities have been developed to promote collaboration across sectors and leverage the relative strengths of different actors.
31. Which partnerships been effective in reducing commodity-driven deforestation? What are the factors that contribute to the effectiveness of these public private partnerships, or present obstacles that impede their effectiveness?
32. Do you recommend any further collection of evidence to verify
33. Do you recommend any further resources to assess the legal frameworks related to deforestation and land use in specific countries, or data sets of legally or illegally deforested lands? Please specify if you believe this is an information gap or, if this evidence exists, please provide detail on the source(s) of this evidence (
34. Do you recommend any further resources related to the impacts (economic, trade or markets, and otherwise) of deforestation associated with commodities, globally or in specific contexts? Please specify if you believe this is an information gap or, if this evidence exists, please provide detail on the source(s) of this evidence (
We welcome additional information related to addressing the link between soft commodities and deforestation.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to December 19, 2022.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Andrea Battista, who may be reached at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
DDTC regulates the export and temporary import of defense articles and services enumerated on the USML in accordance with the Arms Export Control Act (AECA) (22 U.S.C. 2751
The ITAR requires persons registered with DDTC to maintain records pertaining to defense trade-related transactions. This information collection approves the record-keeping requirements imposed on registrants by the ITAR. Respondents to this collection may submit their records to DDTC as supporting documentation for disclosures of potential violations of the AECA. The method by which respondents submit these records is approved under OMB control no. 1405-0179. DDTC uses these records to analyze industry compliance processes and procedures, and to help assess whether the activity in question might merit administrative sanctions or referral to the Department of Justice for possible criminal prosecution.
In accordance with part 129 of the ITAR, U.S. and foreign persons required to register as a broker shall provide annually a report to DDTC enumerating and describing brokering activities by quantity, type, U.S. dollar value, purchaser/recipient, and license number for approved activities and any exemptions utilized for other covered activities. This information is currently used in the review of munitions export and brokering license applications and to ensure compliance with defense trade statutes and regulations. As appropriate, such information may be shared with other U.S. Government entities.
In accordance with part 129 of the International Traffic in Arms Regulations (ITAR), U.S. and foreign persons who wish to engage in ITAR-controlled brokering activity of defense articles and defense services must first register with DDTC. Brokers must then submit a written request for approval to DDTC and must receive DDTC's consent prior to engaging in such activities unless exempted. This information is currently used in the review of the brokering request submitted for approval and to ensure compliance with defense trade statutes and regulations. It is also used to monitor and control the transfer of sensitive U.S. technology.
Respondents will submit information as attachments to relevant license applications or requests for other approval.
Respondents may maintain records in any format consistent with the provisions in ITAR § 122.5.
Brokering Reports are submitted annually with Statement of Registration renewals.
Applicants are referred to ITAR part 129 for guidance on information to submit regarding proposed brokering activity. Applicants may submit a Brokering Prior Approval Request electronically via DDTC's Defense Export Control and Compliance System (DECCS), using the DS-4294.
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces that it is reviewing a proposed Noise Compatibility Program (NCP) Update submitted by Broward County, Florida, through its Aviation Department, for Fort Lauderdale-Hollywood International Airport and has found it in compliance with applicable requirements. This NCP Update was submitted subsequent to a determination by the FAA that the associated Noise Exposure Maps (NEMs) for the Fort Lauderdale-Hollywood International Airport, were prepared in compliance with applicable requirements. The NCP Update will be approved or disapproved (other than the proposed use of flight procedures for noise control) on or before April 10, 2023. Finally, this notice announces that the proposed NCP Update will be available for public review and comment for 60 days from the publication date of this notice.
The effective start date of the FAA's 180-day review period for the associated NCP Update is October 12, 2022. The FAA must issue an approval or disapproval of the NCP Update (other than the proposed use of flight procedures for noise control) on or before April 10, 2023. The public review and comment period ends 60 days from the publication date of this notice.
Peter Green, Federal Aviation Administration, Orlando Airports District Office, 8427 SouthPark Circle, Suite 524, Orlando, Florida 32819, (407) 487-7296. Comments on the proposed NCP Update should also be submitted to the above office.
This notice announces that the FAA is reviewing a proposed NCP Update for the Fort Lauderdale-Hollywood International Airport. As required by Title 14 Code of Federal Regulations part 150 (hereinafter referred to as Part 150), the NCP Update will be approved or disapproved (other than the proposed use of flight procedures for noise control) on or before April 10, 2023. Measures that involve changes to flight procedures require further analysis and are not subject to the 180-day statutory decision deadline. This notice also announces the availability of this NCP Update for public review and comment for 60 days from the publication date of this notice.
Under the Aviation Safety and Noise Abatement Act (49 U.S.C. 47501
The FAA has formally received the NCP Update for the Fort Lauderdale-Hollywood International Airport, effective on October 12, 2022. Broward County, Florida, through its Aviation Department, requested the FAA review this material and that the noise mitigation measures, to be implemented jointly by the Sponsor and surrounding communities, be approved as a NCP Update under the Act. Preliminary review of the submitted material indicates that it conforms to Part 150 requirements for the submittal of an NCP, but that further review is necessary prior to approval or disapproval of the NCP Update. The formal review period, limited by law to a maximum of 180 days, will be completed on or before April 10, 2023, with the exception of NCP measures that propose the use of flight procedures for noise control. A public hearing on the NCP was held by the Sponsor on April 21, 2021
The FAA's detailed evaluation will be conducted under the provisions of part 150, 105.33. The primary considerations in the evaluation process are whether the proposed measures may reduce the level of aviation safety or create an undue burden on interstate or foreign commerce, and whether they are reasonably consistent with obtaining the goal of reducing existing non-compatible land uses and preventing the introduction of additional non-compatible land uses.
Each airport NCP/NCP Update developed in accordance with part 150 is a local program, not a Federal program. The FAA does not substitute its judgment for that of the Sponsor with respect to which measures should be recommended for action. The FAA's approval or disapproval of each specific measure proposed by a Sponsor in an NCP/NCP Update is determined by applying approval criteria prescribed in § 150.35(b) of Part 150. Only measures that meet the approval criteria can be approved and considered for Federal funding eligibility. FAA approval or disapproval of a measure only indicates whether that measure would, if implemented, be consistent with the purposes of Part 150. When a measure is disapproved by the FAA, Sponsors are encouraged to work with their communities and the FAA, outside of the part 150 process as necessary, to implement initiatives that provide noise benefits for the surrounding community.
Interested persons are invited to comment on the proposed NCP Update with specific reference to these factors. To maximize the effectiveness of comments and the FAA's understanding of them, comments should be as specific as possible, identifying the concern(s) as well as suggested or desired resolution to the concern(s). When possible, quote text and cite details such as page and section numbers, NCP Update measure number, etc. to which the comment(s) pertain. This commenting procedure is intended to ensure that substantive comments and concerns are made available to the FAA in a timely manner so that the FAA has an opportunity to address them in its Record of Approval. All comments in their entirety become part of the public record, including any personal information provided in the comment including name, address, phone number, etc. All relevant comments, other than those properly addressed to local land use authorities, will be considered by the FAA to the extent practicable.
Copies of the the proposed NCP Update are available for examination online at
Please direct questions or requests to arrange an appointment to review the NCP Update document to the individual named above under the heading,
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) regarding the Midvalley Connector Bus Rapid Transit (BRT) Project in the Cities of Murray, Taylorsville, and West Valley, Salt Lake County, Utah. The purpose of this notice is to publicly announce the FTA's environmental decisions on the subject project and to activate the limitation on any claims that may challenge these final environmental actions.
A claim seeking judicial review of FTA actions announced herein for the listed public transportation project will be barred unless the claim is filed on or before March 17, 2023.
Kathryn Loster, Assistant Chief Counsel, Office of Chief Counsel, (312) 705-1269, or Saadat Khan, Environmental Protection Specialist, Office of Environmental Programs, (202) 366-9647. FTA is located at 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency actions subject to 23 U.S.C. 139(l) by issuing certain approvals for the public transportation project listed below. The actions on the project, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the project to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA environmental project files for the project. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed project as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA (42 U.S.C. 4321-4375), Section 4(f) requirements (23 U.S.C. 138, 49 U.S.C. 303), section 106 of the National Historic Preservation Act (54 U.S.C. 306108), Endangered Species Act (16 U.S.C. 1531), Clean Water Act (33 U.S.C. 1251), Uniform Relocation and Real Property Acquisition Policies Act (42 U.S.C. 4601), and the Clean Air Act (42 U.S.C. 7401-7671q). This notice does not, however, alter or extend the limitation period for challenges of project decisions subject to previous notices published in the
U.S.-China Economic and Security Review Commission.
Notice of open public event.
Notice is hereby given of the following open public event of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, and report to Congress annually on “the national security implications of the economic relationship between the United States and the People's Republic of China.” Pursuant to this mandate, the Commission will hold a virtual public release of its 2022 Annual Report to Congress in Washington, DC on November 15, 2022.
The release is scheduled for Tuesday, November 15, 2022 at 10:30 a.m.
Members of the public will be able to view a live webcast via the Commission's website at
Any member of the public seeking further information concerning the event should contact Jameson Cunningham, 444 North Capitol Street NW, Suite 602, Washington, DC 20001; telephone: 202-624-1496, or via email at
Fish and Wildlife Service, Interior.
Proposed rule; announcement of 12-month findings.
We, the U.S. Fish and Wildlife Service (Service), announce 12-month findings on a petition to list the Kern Plateau salamander (
For the proposed rule to list the Kern Canyon slender salamander and the relictual slender salamander and designate critical habitat for these species and for the draft economic analysis for this proposed rulemaking action, we will accept comments received or postmarked on or before December 19, 2022. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
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We request that you send comments only by the methods described above. We will post all comments on
Michael Fris, Field Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA 95825; telephone 916-414-6700. 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 have determined that the Kern Canyon slender salamander is facing threats due to grazing, recreation, fire,
Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.
For the Kern Plateau salamander, we ask the public to submit to us at any time new information relevant to the species' status or its habitat.
For the Kern Canyon slender salamander and the relictual slender salamander, 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, including the locations of any additional populations of these species;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, their habitats, 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 these species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status of these species.
(5) Information on regulations that are necessary and advisable to provide for the conservation of the Kern Canyon slender salamander and that we can consider in developing a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether we should consider any additional exceptions from the prohibitions in the 4(d) rule.
(6) 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, 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.”
(7) Specific information on:
(a) The amount and distribution of Kern Canyon slender salamander and relictual slender salamander habitat;
(b) Any additional areas occurring within the range of the species in Kern County that should be included in the designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species; and
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change.
(8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.
(10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable economic impacts that we should consider.
(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any areas, please provide information supporting a benefit of exclusion.
(12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
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, do not provide substantial information necessary to support a determination. 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
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 Kern Canyon slender salamander is endangered instead of threatened, that the relictual slender salamander is threatened instead of endangered, or we may conclude that either or both species do not warrant listing as either endangered species or threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, and may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species.
In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions in the proposed 4(d) rule for the Kern Canyon slender salamander if we conclude it is appropriate in light of comments and new information received. For example, we may expand the prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species.
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in
We use many acronyms and abbreviations in this rule. For the convenience of the reader, we define some of them here:
On July 11, 2012, the Center for Biological Diversity (CBD 2012, entire) submitted a petition to list 53 species of reptiles and amphibians including the relictual slender salamander (
A species status assessment (SSA) team composed of Service biologists, in consultation with species experts, prepared an SSA report for the Kern Plateau salamander, the Kern Canyon slender salamander, and the relictual slender salamander (Service 2022a, 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
Under section 4(b)(3)(B) of the Act, we are required to make a finding whether or not a petitioned action is warranted within 12 months after receiving any petition that we have determined contains substantial scientific or commercial information indicating that the petitioned action may be warranted (“12-month finding”). We must make a finding that the petitioned action is: (1) Not warranted; (2) warranted; or (3) warranted but precluded. “Warranted but precluded” means that (a) the petitioned action is warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened species, and (b) expeditious progress is being made to add qualified species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) and to remove from the Lists species for which the protections of the Act are no longer necessary. Section 4(b)(3)(C) of the Act requires that, when we find that a petitioned action is warranted but precluded, we treat the petition as though resubmitted on the date of such finding; accordingly, a subsequent finding must be made within 12 months of that date. We must publish these 12-month findings in the
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.
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 expected response by the species, 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.” The regulatory language that is applicable to determinations of the foreseeable future is contained in the regulations at 50 CFR 424.11(d) promulgated in 2019 (
It is not always possible or necessary to define 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' likely 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.
In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the Kern Plateau salamander (Service 2022b, entire) currently meets the definition of “endangered species” or “threatened species,” we considered and thoroughly evaluated the best scientific and commercial data available regarding threats, regulatory mechanisms, conservation measures, current condition, and future condition. We reviewed the petition, information available in our files, and other available published and unpublished information. This evaluation includes information from recognized experts; Federal, State, and Tribal governments; academic institutions; private entities; and other members of the public. After comprehensive assessment of the best scientific and commercial data available, we determined that the Kern Plateau salamander does not meet the definition of an endangered or a threatened species.
The SSA Report for the Three Slender Salamanders and the Species Assessment Form for the Kern Plateau salamander contain more detailed biological information regarding the Kern Plateau salamander, a thorough description of the factors influencing the species' viability, and the current and future conditions of the species (Service 2022a, entire; Service 2022b, entire). This supporting information can be found on the internet at
The Kern Plateau salamander is a slender salamander that has a broad, robust body with 16-17 costal grooves and a relatively short tail. The salamander is known from 35 sites, spread across areas of Sequoia National Forest and Inyo National Forest and privately owned land on the eastern slope of the Sierra Nevada, located in Inyo and Kern Counties, California.
The Kern Plateau salamander requires bodies of surface water such as seeps, springs, streams, and associated riparian and mesic habitat. In addition, the salamander requires the presence of sufficient refugia consisting of materials such as woody debris, bark, leaf litter, rocks, and other cover objects within mesic and riparian habitats. Abundant interstitial spaces must be available
In the SSA report (Service 2022a, pp. 12-15), the range of the Kern Plateau salamander was divided into three geographic groups: the Kern Plateau geographic group in the southwestern Sierra Nevada in Kern County, CA; the Inyo geographic group on the eastern slope of Sierra Nevada in Inyo County, CA; and the Scodie Mountain geographic group in the Scodie Mountains in Kern County, CA. The Kern Plateau and Scodie Mountain geographic groups are entirely within the Sequoia National Forest. The Scodie Mountain geographic group also falls within the Kiavah Wilderness. The Inyo geographic group includes areas in the Inyo National Forest and outside of the National Forest in Owens and Indian Wells Valleys.
The Kern Plateau salamander is an endemic species currently known from 35 sites across a 302,035-ha (746,347-ac) range, with no identified reductions in historical range, redundancy, or representation. In the SSA report and the SAF, we analyzed ten potential threats impacting the species and its habitat. Currently, habitat supporting the Kern Plateau salamander is primarily affected by habitat degradation from roads (Factor A), recreation (Factor A), grazing (Factor A), timber harvest and hazard tree removal (Factor A), fire (Factor A), and climate change (Factor E). These threats continue to degrade the seep and spring habitat, and in some rare cases may result in direct mortality of individual Kern Plateau salamanders.
Fire (Factor A) currently presents one of the largest risks to the Kern Plateau salamander. The fire threat as measured by CAL FIRE is high to very high at most of the sites occupied by the Kern Plateau salamander on the Kern Plateau and Scodie Mountain geographic groups, and moderate to high at sites in the Inyo geographic group (Service 2022a, figure 27). There are few regulatory mechanisms available to address the risk of catastrophic wildfire to the species. The Scodie Mountain geographic group previously experienced a high-severity fire in 1997 that altered the habitat type and likely degraded the seep and stream microhabitat. In addition to all sites being subjected to fire risk, most sites across the species' range are further subject to habitat degradation through grazing, with a majority of sites within grazing allotments (Factor A).
The threat from the impact of roads (Factor A), recreation (Factor A), and timber harvest and hazard tree removal (Factor A) to the Kern Plateau salamander varies throughout the species' range. Habitat in the Inyo geographic group is more isolated from roads and recreation, and timber harvest does not take place in the area (additionally, hazard tree removal may not be carried out in isolated areas). Timber harvest has not occurred within the Scodie Mountains, but within this area there are roads and trails in proximity to the occupied sites, and the nearby McIver's Cabin is a popular destination for OHV recreationists and hikers. Within the Kern Plateau geographic group, there are areas that have frequent motorized recreation use, tree harvest, and hazard tree removal. In the parts of geographic groups found within Inyo and Sequoia National Forests, the effects associated with some of the threats impacting the species are being reduced in magnitude due to implemented regulatory mechanisms (Factor D) within the national forests due to the Kern Plateau salamander being a USFS species of conservation concern.
After evaluating threats to the Kern Plateau salamander and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that though the Kern Plateau salamander currently has some reduced population resiliency in two of the geographic groups, population resiliency is maintained from historical levels at the third geographic group (Inyo), and, overall, the species is still extant at multiple sites throughout the range. Additionally, species redundancy is currently maintained at its historical condition throughout the two largest geographic groups. The Kern Plateau salamander is a narrow endemic and does not have a broad range that encompasses large environmental variability; however, because the species is still distributed throughout its historical range, which includes a range of elevations (1,434-2,804 m (4,705-9,200 ft)) and climatic conditions, the Kern Plateau salamander maintains ecological representation. Thus, after assessing the best available information, we conclude that the Kern Plateau salamander is not in danger of extinction throughout all of its range.
Therefore, we proceed with determining whether the Kern Plateau salamander is likely to become endangered within the foreseeable future throughout all of its range. In considering the foreseeable future as it relates to the status of the Kern Plateau salamander, we considered the timeframes applicable to the relevant risk factors (threats) to the species and whether we could draw reliable predictions about future exposure, timing, and scale of negative effects and the species' response to these effects. We considered whether we could reliably assess the risk posed by the threats to the species, recognizing that our ability to assess risk is limited by the variable quantity and quality of available data about effects to the Kern Plateau salamander and its response to those effects.
The SSA report's analysis of future scenarios over a 50-year timeframe encompasses the best available information for projected future changes in climate change and its effect on modified hydrology across the range of the Kern Plateau salamander. This 50-year timeframe enabled us to consider the threats/stressors acting on the species and to draw conclusions on the species' response to those factors. In our future conditions analysis, we considered the “intermediate” emissions scenario of RCP 4.5 (Scenario 1) and the “very high” emissions scenario of RCP 8.5 (Scenario 2). Under Scenario 1, the resiliency of the Inyo, Kern Plateau, and Scodie geographic groups will be reduced from the current condition. The resiliency of the Scodie Mountain geographic group will be the furthest reduced, and the Scodie Mountain geographic group will be more vulnerable to stochastic events. However, the representation and redundancy of the Kern Plateau salamander will be maintained from current levels. Under Scenario 2, decreased resiliency, representation, and redundancy is projected for the three geographic units, with the Scodie Mountain geographic group again being the most vulnerable to stochastic events. Despite a decline in resiliency under both scenarios and a decline in representation and redundancy under Scenario 2, the Kern Plateau salamander is projected to maintain its distribution throughout the major areas that it historically occupied, with the Inyo and Kern Plateau geographic groups retaining more suitable habitat and occupied sites than the Scodie Mountain geographic group. Even considering threats impacting the species and the species' response, the Kern Plateau salamander will likely maintain enough resiliency, representation, and redundancy to
After assessing the best available information on the factors affecting the species (threats) within our future scenarios and the species' response to those factors, we conclude that the Kern Plateau salamander is not likely to become endangered within the foreseeable future 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. 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. Having determined that the Kern Plateau salamander is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which it is true that both (1) the portion is significant; and (2) the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.
In undertaking this analysis for the Kern Plateau salamander, we chose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species may be endangered or threatened.
For the Kern Plateau salamander, we considered the following 10 threats: Roads (Factor A), recreation (Factor A); grazing (Factor A); timber harvest (Factor A); hazard tree removal (Factor A); infrastructure development (Factor A); fire (Factor A); overutilization due to recreational, educational, and scientific use (Factor B); disease (Factor C); predation (Factor C); effects associated with small population size (Factor E); and climate change (Factor E). We also evaluated existing regulatory mechanisms (Factor D). Most of these threats are site-specific or affect only individual salamanders; thus, they do not rise to the level of affecting the species at a biologically meaningful scale. However, we now further consider the impact of climate change, fire, grazing, and timber harvest of dead trees, because these four threats occur across the range of the species, though there may be some local variation in magnitude.
Next, we consider if any portions of the range may be uniquely vulnerable to those threats. As we noted above, the Scodie Mountain geographic group has a reduced ability to withstand and recover from normal stochastic variation, relative to historical conditions and will have reduced condition in the foreseeable future as compared to other geographic groups. However, the impact of these threats listed above is only slightly higher in the Scodie Mountain geographic group than in the Kern Plateau geographic group. Additionally, the entirety of the Scodie Mountain geographic group falls within the boundary of the Sequoia National Forest; thus, the magnitude of threats is reduced by measures to reduce impacts to seeps and springs from threats such as grazing and from hazard tree removal. The land management plan outlines desired habitat management conditions for riparian areas which, upon implementation, would reduce the risks of catastrophic wildfire and climate change in the area. Though there are a limited number of occurrences in the Scodie Mountain geographic group, scientists have detected salamanders even post-fire, indicating that despite degraded habitat conditions, it still maintains the ability to withstand stochastic events. Thus, we found no concentration of threats at a biologically meaningful scale anywhere in the Kern Plateau salamander's range, and we conclude that there is no portion of the range where the status of the species differs from any other portion of the species' range.
Therefore, we find that the species is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. This does not conflict with the courts' holdings in
Our review of the best available scientific and commercial information indicates that the Kern Plateau salamander does not meet the definition of an endangered species or a threatened species in accordance with sections 3(6) and 3(20) of the Act. Therefore, we find that listing the Kern Plateau salamander is not warranted at this time. A detailed discussion of the basis for this finding can be found in the Kern Plateau salamander species assessment form (Service 2022b, entire) and other supporting documents, such as the accompanying SSA report (Service 2022a, entire) (see
A thorough review of the taxonomy, life history, and ecology of the Kern Canyon slender salamander and the relictual slender salamander is presented in the SSA report (Service 2022a, pp. 2-14).
The Kern Canyon slender salamander and the relictual slender salamander are lungless, terrestrial salamanders that are found in the southern Sierra Nevada. Slender salamanders are within the genus Batrachoseps and are known for their long, thin bodies, small limbs, and projectile tongues that they use to catch small invertebrate prey (Stebbins and McGinnis 2012, pp. 124-140). Relictual slender salamanders are small (1.3-1.9 in (3.3-4.7 cm) snout-vent length) with 18-19 costal grooves and have blackish brown coloration with a red, yellow, or brown dorsal stripe (Jockusch et al. 2012, p. 14; Stebbins and McGinnis 2012, p. 139). Kern Canyon slender salamanders are larger (1.6-2.2 in (4.0-5.6 cm) snout-vent length) with broader head and limbs and 20-21 costal grooves (Stebbins and McGinnis 2012, p. 130). The ventral surfaces and sides of Kern Canyon slender salamanders are dark brown with flecks of lighter color, and the dorsal surfaces are mottled bronze and red. Many of the life-history characteristics of the relictual and Kern Canyon slender salamanders are
Slender salamanders are thought to lay eggs terrestrially in protected areas, hatch from eggs as miniature adults, reach reproductive maturity in 2-4 years, and live for a maximum of 8-10 years (Hendrickson 1954, p. 19; Stebbins 1985, p. 39; Wake and Castanet 1995, p. 63; Jockusch and Mahoney 1997, entire; Wake 2017, entire). Slender salamanders are active on the surface seasonally when conditions are favorable for performing skin and buccopharyngeal respiration (oxygen is taken up simply by diffusion or by the contraction and relaxation of the muscles of the cheeks or mouth and throat). At lower elevations, the relictual slender salamanders and Kern Canyon slender salamanders have been found active on the surface from January to May; at higher elevations, they are active from March to early November (Jockusch et al. 2012, p. 17; Jockusch 2021a, pers. comm.). When these species are active on the surface, they are usually found under cover objects, such as rocks, woody debris, and leaf litter, that are in proximity to seeps, springs, or streams (Stebbins 1985, p. 39; Jockusch and Mahoney 1997, entire; Wake 2017, entire). When conditions are not favorable on the surface, slender salamanders are thought to shelter in underground burrows (Cunningham 1960, p. 95; Lannoo 2005, pp. 688-693).
The Kern Canyon slender salamander was known historically from 18 occupied sites to the southwest of the Isabella Lake reservoir in Kern County, California. Kern Canyon slender salamanders are found within Sequoia National Forest in the lower Kern River Canyon and outside of Sequoia National Forest within the Erskine Creek and Bodfish Creek drainages. Kern Canyon slender salamanders occur in narrow canyons in rocky habitat within the margins of seeps and streams or talus slopes (Lannoo 2005, pp. 691-693). They are found under rocks and woody debris in areas that retain soil moisture. Kern Canyon slender salamanders are associated with pine-oak woodlands with overstory of foothill pine (
The relictual slender salamander has historically been documented at 13 sites within a small area of Sequoia National Forest in Kern County, California. Within this limited range, the species is found in small patches of moist, rocky habitat within the margins of seeps, springs, and streams. Relictual slender salamanders have been observed submerged in seeps and springs and under cover objects that have water beneath them (Lannoo 2005, p. 687; Jockusch et al. 2012, p. 17). Consequently, the species has been described as semi-aquatic and is thought to have a closer association with water than other species of slender salamanders. Two communal nests of relictual slender salamanders have been found during the spring and early summer in rocky habitat at the edge of seep and stream habitat (Jockusch 2021a, pers. comm.). In the lower Kern River Canyon, the relictual slender salamander is found in valley foothill riparian habitat and blue oak woodland with limited tree cover of oaks (
Information on occurrences for the Kern Canyon slender salamander and the relictual slender salamander is limited, as widespread systematic surveys for the species have not been conducted. Therefore, the best available information on the Kern Canyon slender salamander and the relictual slender salamander comes from recorded incidental observations and opportunistic searches over limited areas. Due to the nature of these records of observations, the survey effort for the two species is not standard from one site to another, across geographic groups, or from species to species. At some of the sites where salamanders have been observed, the sites have not been searched for the species over the last 30-40 years. In these cases, there is considerable uncertainty as to whether the species continues to occupy the sites. In the absence of more recent information, if conditions at the site are still suitable to support the species, we assume that the species continues to occupy these sites but recognize that there is uncertainty associated with this assumption.
There is no available information on population structure or population sizes of either the Kern Canyon slender salamander or the relictual slender salamander. Therefore, we divide the sites of each species into geographic groups to aid our analysis in our SSA report and this proposed rule. The Kern Canyon slender salamander has historically been documented in 18 sites in the Lower Kern River Canyon and Erskine Creek geographic groups; only 9 of those sites are currently considered extant (table 1), although 2 have not had surveys reported to CNDDB in the last 30-40 years. The relictual slender salamander has been documented from 13 sites in the Lower Kern River Canyon geographic group, the Lucas Creek geographic group, and the Squirrel Meadow geographic group. All five sites in the Lower Kern River Canyon geographic group are considered to be extirpated, and eight sites in the other two geographic groups are currently considered extant. In 2019, a search of mesic habitat on Breckenridge Mountain led to the discovery of four sites (Flying Dutchman Drainage, Mill Creek Drainage A, Mill Creek Drainage B, Mill Creek Drainage C) occupied by the relictual slender salamander. At two of those sites more than 20 individuals were found; however, we do not have specific information on which of the 4 sites had more than 20 individuals (Figure 1; Jockusch 2021a, pers. comm.).
Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for threatened and endangered species. In 2019, jointly with the National Marine Fisheries Service, the Service issued final rules that revised the regulations in 50 CFR parts 17 and 424 regarding how we add, remove, and reclassify threatened and endangered species and the criteria for designating listed species' critical habitat (84 FR 45020 and 84 FR 44752; August 27, 2019). At the same time the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (collectively, the 2019 regulations).
However, as discussed under I. Finding for the Kern Plateau Salamander, the U.S. District Court for the Northern District of California vacated the 2019 regulations (
On September 21, 2022, the U.S. Circuit Court of Appeals for the Ninth Circuit stayed the district court's July 5, 2022, order vacating the 2019 regulations until a pending motion for reconsideration before the district court is resolved (
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.” With the vacatur of the 2019 regulation regarding foreseeable future, we refer to a 2009 Solicitor's Opinion (M-37021), which states that the foreseeable future “must be rooted in the best available data that allow predictions into the future” and extends as far as those predictions are “sufficiently reliable to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.”
It is not always possible or necessary to define 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
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 and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R8-ES-2022-0081 and on
To assess Kern Canyon slender salamander and relictual slender salamander 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.
In this discussion, we review the biological condition of each 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.
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 both species, but we have also analyzed their potential cumulative effects. 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.
The Kern Canyon slender salamander and the relictual slender salamander require bodies of surface water such as seeps, springs, and streams and associated riparian and mesic habitat. In addition, the salamanders require the presence of sufficient refugia consisting of debris such as woody debris, bark, leaf litter, rocks, and other cover objects within mesic and riparian habitats. There must be abundant interstitial spaces underneath debris or cover objects to facilitate resting, foraging, and movement of salamanders. Microclimates underneath debris or cover objects must be cool and moist as the Kern Canyon slender salamander and the relictual slender salamander are susceptible to desiccation.
For the purpose of the SSA report and this proposed rule, the habitat factors considered most significant for the Kern Canyon slender salamander and the relictual slender salamander are seeps, springs, and streams; debris including woody debris, bark, leaf litter; and rocks that provide refugia within riparian and mesic habitats; cool and damp microhabitat conditions; and small invertebrate prey. Additionally, the Kern Canyon slender salamander and the relictual slender salamander require access to mates to carry out breeding (Service 2022a, p. 15; table 4).
At the population level, we used the best available information to assess the resources and circumstances that most influence the resiliency of Kern Canyon slender salamander and relictual slender salamander populations. The population needs that we evaluate for this species are survival, dispersal, fecundity, and abundance. Because information is not available on population structure or size for either species, we consider geographic groups as a proxy for populations and thus discuss resiliency by geographic group. We do note that, since we have no information on population structure or dispersal, analyzing resiliency by geographic groups may over-estimate the resiliency of the Kern Canyon slender salamander and the relictual slender salamander, as the extent of geographic groups is greater than estimated average dispersal distance of the salamanders.
With regard to survival, most of the individual needs identified above influence survival in a geographic group. Survival may be limited by both the quantity and quality of available habitat including the presence of seeps, springs, and streams; debris that provides refugia; and cool and damp microhabitats. However, we do not know how much suitable habitat is required to sustain geographic groups of either the Kern Canyon slender salamander or the relictual slender salamander. Survival is also affected by the availability of prey.
No information is available on the dispersal distances of the Kern Canyon slender salamander and the relictual slender salamander. In general, slender salamanders are thought to have small home ranges and to be highly sedentary. The maximum distances traveled by
Not much is known about the reproduction of the Kern Canyon slender salamander or the relictual slender salamander. In general, lungless salamanders (family: Plethodontidae) produce one clutch annually. The clutch sizes of the relictual slender salamander and the Kern Canyon slender salamander are unknown. However, visual counts indicate that gravid relictual slender salamanders carry between 16-22 eggs (Jockusch 2021a, pers. comm.; Jockusch 2021b, pers. comm.). Many of the individual needs of the Kern Canyon slender salamander and the relictual slender salamander are expected to influence fecundity of the species, including availability of suitable aquatic and riparian habitats, debris for refugia, small invertebrate prey, and mates.
While we do not have population estimates or a robust understanding of the abundance of the Kern Canyon slender salamander and the relictual slender salamander, many of the individual needs for the two species are expected to influence abundance. A variety of factors may regulate the numbers of the Kern Canyon slender salamander and the relictual slender salamander in each geographic group. These factors may be density-dependent (habitat quality, habitat abundance) or density-independent (climate). The salamanders require sufficient habitat to support population sizes large enough to recover from harmful events such as storms, droughts, or fires (environmental stochasticity). We discuss the potential impacts of such factors below, but we lack information regarding the amount of habitat and resulting population size that a single population would require to minimize such risks.
At the species level, we consider the needs of the Kern Canyon slender salamander and the relictual slender salamander in terms of redundancy and representation. In this SSA report and this proposed rule, we evaluate the redundancy of the Kern Canyon slender salamander and the relictual slender salamander by considering the number and distribution of sites occupied by each species in relation to the scale of catastrophic events that are likely to occur, such as the average size of fires in the region.
Regarding representation, in the absence of genetic data for the Kern Canyon slender salamander and the relictual slender salamander, we consider the breadth of environmental diversity for the species. In general, these salamander species are narrow endemics and do not have broad ranges that encompass large environmental variability. However, each of the salamander species occurs over a range of different elevations (Kern Canyon slender salamander: 451-1,676 m (1,480-5,500 ft); relictual slender salamander: 1,219-1,920 m (4,000-6,300 ft)). Due to the differences in climate found throughout the range of elevation occupied by each species, slender salamanders are active on the surface during different seasons. These differences in climatic conditions and temporal behaviors may indicate genetic variability between geographic groups, which may help the Kern Canyon slender salamander and the relictual slender salamander adapt to future environmental variability.
Following are summary evaluations of eight threats analyzed in the SSA report for the Kern Canyon slender salamander and the relictual slender salamander: roads (Factor A), recreation (Factor A), grazing (Factor A), timber harvest (Factor A), hazard tree removal (Factor A), infrastructure development (Factor A), fire (Factor A), and climate change (Factor E). We also evaluate existing regulatory mechanisms (Factor D) and ongoing conservation measures.
In the SSA, we also considered four additional threats: Overutilization due to recreational, educational, and scientific use (Factor B); disease (Factor C); predation (Factor C); and effects associated with small population size (Factor E). We concluded that, as indicated by the best available scientific and commercial information, these threats are currently having little to no impact on either the Kern Canyon slender salamander or the relictual slender salamander, and thus their overall effect now and into the future is expected to be minimal. Therefore, we will not present summary analyses of those threats in this document, but we will consider them in our cumulative assessment of impacts to the species. For full descriptions of all threats and how they impact the species, please see the SSA report (Service 2022a, pp. 21-34).
In considering the foreseeable future as it relates to the status of the Kern Canyon slender salamander, we considered the timeframes applicable to the relevant risk factors (threats) to the species and whether we could draw reliable predictions about future exposure, timing, and scale of negative effects and the species' response to these effects. We considered whether we could reliably assess the risk posed by the threats to the species, recognizing that our ability to assess risk is limited by the variable quantity and quality of available data about effects to the Kern Canyon slender salamander and its response to those effects. For the purposes of this assessment, we consider the foreseeable future for the Kern Canyon slender salamander to be 50 years. This time period represents our best professional judgment of the foreseeable future conditions related to the range of available climate change models and for reasonable extrapolations of current trends and the species' responses to those conditions.
Roads may alter seeps, springs, and drainages and reduce microhabitat features that support the Kern Canyon slender salamander and the relictual slender salamander, such as soil moisture and cover objects, especially during road construction or maintenance projects (Marsh and Beckman 2004, pp. 1889-1890; Clipp and Anderson 2014, p. 2690). Hydrologic effects are likely to persist for as long as the road remains a physical feature altering flow routing; these effects can often persist long after abandonment and revegetation of the road surface. Additionally, undersized or impaired culverts can degrade salamander habitat by flooding areas, changing stream dynamics, or rerouting
Numerous County and USFS roads throughout Sequoia National Forest and on privately owned land may impact the two salamander species and their habitat. Most notably, State Route 178 is a heavily trafficked road that passes through the historical range of the relictual slender salamander and the current range of the Kern Canyon slender salamander in the Lower Kern River Canyon. Construction of State Route 178 in 1933 and subsequent repair, maintenance, and widening of the road altered drainages and degraded habitat occupied by the salamanders (Lannoo 2005, pp. 688-693; USFS 2011a, p. 39). The highway's construction may have contributed to the extirpation of the relictual slender salamander from the Lower Kern River Canyon (Lannoo 2005, pp. 688-690; USFS 2011a, p. 39). The Kern Canyon slender salamander may also have been extirpated from sites in the Lower Kern River Canyon due in part to degradation of habitat from construction and enhancement of State Route 178 (Lannoo 2005, p. 693; USFS 2011a, p. 39).
Additionally, road construction associated with timber harvest in Sequoia National Forest has historically degraded habitat for the relictual slender salamander. On Breckenridge Mountain in the early 1980s, a USFS logging road was rerouted through a portion of a seep occupied by the relictual slender salamander. The construction considerably modified the structure and hydrology of the seep and the number of relictual slender salamanders found at the site was reduced for the following 20 years (Jennings and Hayes 1994, p. 24; Jockusch et al. 2012, p. 18). The current land management plan for the Sequoia National Forest outlines standards to minimize the impact of existing roads on natural hydrologic flow and the impact of the construction of roads on wetlands, and to decommission and rehabilitate low-priority roads (USFS 2004, pp. 63, 65; USFS 2019a, p. 1555).
Currently, there are no plans to construct additional roads in the range occupied by the species. Still, existing roads are impacting the Kern Canyon slender salamander and the relictual slender salamander through degradation of seep and spring habitat. Direct mortality also occurs through roadkill; however, because slender salamanders are sedentary and nonmigratory, they are considered to be at low risk of direct mortality by vehicle strikes. Though these effects are site-specific and are not expected to rise to the level of population impacts, they are expected to continue into the foreseeable future.
Recreation that results in ground disturbance within occupied habitat may have direct and indirect impacts on the Kern Canyon slender salamander and the relictual slender salamander. Recreation that could impact slender salamanders includes dispersed camping (camping outside designated sites), hiking, and OHV use. Trails that pass through meadows, seeps, or springs have the potential to alter hydrology and reduce habitat suitability for the Kern Canyon slender salamander and the relictual slender salamander. Trails adjacent to occupied habitat have the potential to alter hydrology, which may result in the loss of mesic habitat or increased runoff and sedimentation that may negatively impact water quality and seep and spring habitat (Sack and da Luz 2003, entire; Meadows et al. 2008, entire). Additionally, trampling by hikers, bikers, pets, and OHVs on trails within occupied habitat has the potential to directly kill individual slender salamanders.
Sequoia National Forest offers a variety of recreation activities for the public, including OHV trails, hiking, and camping; it receives more than one million visitors a year (USFS 2019a, p. 72). The Lower Kern River Canyon includes areas within the historical range of the relictual slender salamander and the current range of the Kern Canyon slender salamander that are high-use recreation areas. Parts of the eastern portion of Breckenridge Mountain within the range of the relictual slender salamander are moderate-use recreation areas (USFS 2019a, figure 23, p. 129). Additionally, OHV trails are located by sites occupied by the relictual slender salamander on Breckenridge Mountain and the Kern Canyon slender salamander in the Lower Kern River Canyon.
For most USFS trails, considerations have been made to determine the environmental impacts of the trails and adjustments have been made to minimize impacts (USFS 2004, pp. 59, 63, 65; USFS 2019a, p. 85). In the Lower Kern River Canyon within the historical range of the relictual slender salamander and the range of the Kern Canyon slender salamander, some areas have been gated off from OHVs to protect sensitive riparian habitat (USFS 2013, p. 7). In the 1980s, dispersed camping was restricted from some Sequoia National Forest lands in the Lower Kern River Canyon within the historical range of the relictual slender salamander and the range of the Kern Canyon slender salamander, but these lands remain open to OHVs and foot traffic (USFS 2011a, p. 43). On Breckenridge Mountain in Sequoia National Forest within the range of the relictual slender salamander, dispersed camping is permitted and there is a designated primitive campground. Additionally, illegal user-made OHV trails are continually established in the Sequoia National Forest on Breckenridge Mountain within the range of the relictual slender salamander (USFS 2019b, pp. 109, 115).
Recreation is currently impacting the Kern Canyon slender salamander and the relictual slender salamander through degradation of seep and spring habitat and possibly direct mortality of individuals, although these effects are site-specific. Though measures reducing the impact of this threat are in place due to forest management plans and effects are not occurring at the population level, some effects on seeps and springs and individual salamanders are expected to continue into the foreseeable future.
Cattle grazing and associated infrastructure (water troughs, corrals, loading chutes, and fences) have the potential for direct and indirect impacts to the Kern Canyon slender salamander and the relictual slender salamander. The mesic habitat used by salamanders is often in areas that livestock congregate in to seek shade, cooler bedding, and water (USFS 2011a, p. 45). Grazing can cause erosion of stream channels and can damage and reduce vegetative cover (Kauffman and Krueger 1984, pp. 431-434; Armour et al. 1994, pp. 9-12). Loss of vegetative cover from grazing has the potential to lower groundwater tables and summer flows (Kauffman and Krueger 1984, pp. 431-434; Armour et al. 1994, pp. 9-12). To provide water for livestock, water is sometimes diverted from springs and streams, limiting the extent of wet in-channel and riparian habitat. Formerly perennial seeps, springs, and streams may become intermittent or dry due to loss of water storage capacity in the aquifers that formerly sustained them. Further, heavy grazing or grazing
In past decades, cattle grazing has severely degraded salamander habitat as grazing is concentrated at the bottom of narrow ravines where salamanders are found near the surface in higher densities (Lannoo 2005, pp. 688-693; USFS 2011a, p. 44). The rangelands of the Sequoia National Forest within the range of the Kern Canyon slender salamander and the relictual slender salamander have been grazed by livestock since the late 1800s (USFS 2019a, p. 5). Currently, grazing occurs throughout Sequoia National Forest, and most of the sites occupied by the Kern Canyon slender salamander and the relictual slender salamander are within grazing allotments. Grazing is managed by the current land management plan for the Sequoia National Forest (USFS 2004, pp. 55-56, 65-66). The plan includes management strategies that limit grazing in fens, meadows, and riparian areas and may therefore benefit the Kern Canyon slender salamander and the relictual slender salamander (USFS 2004, pp. 65-66). Specific measures include inventorying of fens prior to reissuing of grazing permits to ensure desired species richness and implementing grazing limitations or suspensions necessary in the event of habitat degradation. In the last 20 years, some riparian areas within the Lower Kern River Canyon and on Breckenridge Mountain have been fenced off to exclude livestock. Additionally, some sites occupied by the species within grazing allotments are in incidental use areas and may not be accessible to livestock because of rocky terrain.
Grazing is currently impacting the Kern Canyon slender salamander and the relictual slender salamander through degradation of seep and spring habitat. The impact of grazing is particularly severe in some habitat types more than others, though grazing within USFS lands is managed to reduce impacts to sensitive riparian features. Still, grazing is occurring throughout the range of both species, and we expect it will continue to occur and impact Kern Canyon slender salamander and the relictual slender salamander populations into the foreseeable future.
Timber harvest including commercial harvest, thinning treatments to reduce risk of fire, and snag removal post-fire or beetle-kill events has the potential to impact the Kern Canyon slender salamander and the relictual slender salamander through direct mortality and indirect impacts to habitat. Direct mortality may result from timber harvest involving the use of heavy equipment within the range of the species. Heavy equipment used for timber harvest may crush salamanders that are active on the surface. Aquatic and riparian habitats are impacted by timber harvest that takes place within the watershed due to increased runoff, erosion, and sedimentation, and the resulting changes in water flow, water quality, and stream morphology (Chamberlin 1982, entire).
Additionally, timber harvest has the potential to indirectly affect the terrestrial salamanders through construction of new roads to support timber harvesting and bring in large equipment, removal of shade structure that is important for the thermal regulation of the environment and suitable microclimate conditions that support the Kern Canyon slender salamander and the relictual slender salamander and through removal of woody debris that salamanders need for refugia (Duvall and Grigal 1999; entire). No studies have focused on the effects of timber harvest on the Kern Canyon slender salamander and the relictual slender salamander, but several studies have found that the abundance of terrestrial salamanders decreases in areas that have been harvested for timber (Petranka et al. 1993, entire; deMaynadier and Hunter 1995, entire; Dupuis et al. 1995, entire; Ash 1997, entire; Herbeck and Larsen 1999, entire; Knapp et al. 2003, entire; Homyack et al. 2011, entire).
Timber harvest on national forest lands within the range of the Kern Canyon slender salamander and the relictual slender salamander is managed by the land management plan for the Sequoia National Forest. The Revised Draft Land Management Plan for the Sequoia National Forest identifies 32,276 ha (79,755 ac) as suitable for timber production (USFS 2019b, p. 85). Areas classified as suitable for timber harvest encompass 6.3 percent of the estimated historical range of the relictual slender salamander and 0.5 percent of the estimated range of the Kern Canyon slender salamander. Additionally, Sequoia National Forest has had large tree mortality events due to drought conditions and beetle outbreaks and, therefore, may experience an increase in timber harvest of dead trees (Preisler et al. 2017, p. 166).
In recent years, large tree mortality events due to drought conditions and beetle outbreaks have occurred in the Sequoia National Forest (Preisler et al. 2017, p. 166). The estimated number of dead trees in the Sequoia National Forest has increased annually for the past decade (USFS 2018, entire). It is likely that tree mortality will continue due to worsening drought conditions that will continue to weaken trees and increase susceptibility to bark beetles and disease, necessitating increased thinning to reduce the threat of fire in the National Forests (Millar and Stephenson 2015, pp. 823-826; Young et al. 2017, pp. 78, 85). However, tree mortality is expected to be lower in wetter riparian areas along the seeps, springs, and streams that provide habitat for the Kern Canyon slender salamander and the relictual slender salamander.
The majority of forest roads in the National Forests of the Sierra Nevada were built between 1950 and 1990 to support major increases in timber harvest (USFS 2001, p. 443). Most of the impact of timber harvesting and associated road development on habitats within the National Forests of the Sierra Nevada took place during the expansion period in the latter half of the 20th century. Over the last 20 years, timber harvest in the Sequoia National Forest has decreased substantially. Timber harvest is now managed by the current land management plan for the Sequoia National Forest (USFS 2019a, entire). Current forest standards and guidelines outline timber harvest practices that maintain minimum forest density requirements and increase retention of down logs and coarse woody debris, thereby possibly benefiting the Kern Canyon slender salamander and the relictual slender salamander by contributing to the availability of refugia. Current forest standards and guidelines provide protections for riparian areas, such as maintaining buffers during timber and vegetation management activities. Further, riparian areas are protected by mechanical equipment buffers and are generally not harvested. However, fire suppression has resulted in increased conifer density and decreased riparian herbaceous vegetation in riparian areas, which may lead to more timber management in riparian areas in the future (USFS 2019b, pp. 109, 115).
Although impacts to habitat from timber harvest have the potential for population-level effects on the Kern Canyon slender salamander and the relictual slender salamander, at present the best available information indicates current levels of timber harvest are not adversely affecting either species. However, the legacy effects of timber harvest activities such as roads and modified hydrology may continue to have localized impacts on the habitat condition of some sites occupied by the Kern Canyon slender salamander and the relictual slender salamander. Timber harvest to remove dead trees may also increase in the foreseeable future as a result of increased tree mortality, further impacting slender salamander habitat, though the percentage of impacted habitat is expected to be small.
The current land management plan for the Sequoia National Forest may call for removal of hazard trees in areas not suitable for timber production. Dead and dying trees and living trees that are deemed a risk to people or property may be removed along roads and trails and within wildfire areas (USFS 2019a, p. 170). Hazard tree removal is carried out for safety considerations and is not considered a component of a timber harvest system or commercial timber harvest. Hazard tree removal often takes place along existing roads and trails; because this activity does not necessitate the construction of additional forest roads, it likely has less impact on salamander habitat than timber harvest. Hazard tree removal may reduce fuel loads and thereby reduce the risk of high-severity wildfire within habitat occupied by the Kern Canyon slender salamander and the relictual slender salamander. As many of the sites occupied by the salamanders are near roads and trails, hazard tree removal is expected to occur at some of these sites within habitat occupied by both species. However, despite the impacts to salamander habitat, hazard tree removal is unlikely to result in salamander mortality as it does not generally involve the use of heavy equipment off existing roads and trails.
Hazard tree removal results in localized effects on the habitat of the Kern Canyon slender salamander and the relictual slender salamander where removal of trees occurs in proximity to habitat occupied by the species and results in modification of seep, spring, or creek margin habitat. Hazard tree removal of dead and dying trees that are a risk to people or property may increase in the foreseeable future as a result of increased tree mortality, though the amount of habitat impacted by hazard tree removal is expected to be small.
Infrastructure development has had the greatest historical impact on habitat occupied by the relictual slender salamander and the Kern Canyon slender salamander. Damming of the Lower Kern River to form Isabella Lake in 1953 flooded areas in the Lower Kern River Canyon and prompted construction and expansion of State Route 178 and ongoing recreation development along the Lower Kern River. Flumes, tunnels, roads, and trails associated with the operation of the Kern River No. 1 hydroelectric project and two placer mining claims are also present along the Lower Kern River within the historical range of the relictual slender salamander and the range of the Kern Canyon slender salamander (USGS 2021a, pp. 1-3; USGS 2021b, pp. 1-3).
Ongoing maintenance is required for utility infrastructure including communication sites in the Lower Kern River Canyon and on Breckenridge Mountain and transmission lines and an electrical subunit in the Lower Kern River Canyon within the Sequoia National Forest. Maintenance of utilities can often be carried out from roads or already disturbed corridors where the Kern Canyon slender salamander and the relictual slender salamander are not expected to be found. However, utility crews may need to access off-road sites where the salamanders are found to replace or perform work on power poles. Equipment used for utility maintenance may cause direct mortality of salamanders by crushing salamanders that are active on the surface or damage habitat by altering seeps and springs. Infrastructure development associated with recreation, roads, hydroelectric projects, and utility maintenance has the potential to cause periodic habitat disturbance to sites occupied by the relictual slender salamander and the Kern Canyon slender salamander with impacts likely concentrated within the Lower Kern River Canyon.
There has been discussion of a future large infrastructure project involving construction of a proposed reservoir within the estimated range of the Kern Canyon slender salamander; however, the project is in the preliminary planning process (Service 2022a, p. 27). Implementation of the proposed project within the range of the species could degrade seep and spring habitat. However, no information is available to suggest that infrastructure development associated with this project will take place within the habitat of the Kern Canyon slender salamander and the relictual slender salamander. Overall, though infrastructure development has affected the two species in the past, current impacts are limited to occasional maintenance activities in limited areas of the species' range, and we do not expect that there will be population-level impacts now or in the foreseeable future.
Fire is a natural ecological process, and fires within the natural range of variation are generally considered beneficial to ecosystems in the Sierra Nevada. Over the long term, small, low-severity fires can improve habitat for fire-adapted plant species, create vegetation mosaics, and support nutrient cycling, thereby increasing resiliency of slender salamander habitat (Safford et al. 2012, entire). In contrast, very large fires with patches that burn at high severity, outside the natural range of variation, can remove forest cover and fragment habitat over large areas and long time periods.
Current habitat conditions within the ranges of the Kern Canyon slender salamander and the relictual slender salamander may contribute to ongoing fire risk. Years of fire suppression in forests of the western United States have led to greater canopy cover from small and medium trees, higher biomass density, and more surface fuels (Parks and Abatzoglou 2020, p. 4). Historically, the mean fire return interval within the Sierra Nevada was 11-16 years with a mean fire size between 200-400 ha (494-988 ac) and with 5 to 15 percent of that area burning at high severity (Safford and Stevens 2017, p. 7). Fire suppression over the last 100 years combined with extended droughts has led to increased fuel loads and changes in fire behavior with larger, more severe fires, and longer wildfire seasons in recent years (Miller and Safford 2012, p. 41; Mallek et al. 2013, p. 1; Safford and Stevens 2017, pp. v-vi; Nigro and Molinari 2019, p. 20).
From 1984 to 2017, forests in the western United States have experienced an eightfold increase in the annual area burned at high severity (Parks and Abatzoglou 2020, p. 4; Service 2022a, figure 8). Current fire return intervals within the estimated ranges of the Kern Canyon slender salamander and the relictual slender salamander are 56-81 years (USFS 2011b, unpaginated). Additionally, the mean size of fires in the Sierra Nevada over the past 30 years has increased to approximately 1,400 ha (3,459 ac) with 30 to 35 percent of the
Little is known about the impact of fire on terrestrial salamanders and their habitat. In general, riparian areas burn less frequently and at lower severity. However, fires may have large impacts on the Kern Canyon slender salamander and the relictual slender salamander due to their low mobility and small range sizes. Fires that burn at low and moderate severity and occur at low elevations during the dry summer, when the salamanders are most likely sheltering in underground burrows, may have minimal effects. However, at higher elevations, salamanders are thought to be active on the surface during the summer, and fires that burn at low to moderate severity may result in mortality of salamanders.
Throughout the range of the Kern Canyon slender salamander and the relictual slender salamander, high-severity fires are especially likely to result in direct mortality to both salamanders on the surface and those sheltered underground, due to radiating heat and loss of soil moisture, as temperatures at the soil-litter interface can reach 482-648 °C (900-1,200 °F) (Sampson 1944, p. 62). Individuals more than a few inches below the soil surface may survive the high-severity fire but will then have reduced or no surface cover and reduced or no invertebrate prey community until the landscape recovers. Additionally, because high-severity fire can reduce canopy cover and remove insulating groundcover soil, temperatures in the top 10 centimeters (3.9 in) of soil in recently burned stands can be 5-10 °C (9-18 °F) higher than in late successional stands, affecting the availability of suitable microclimate conditions for the salamanders following fires (Liu et al. 2005, p. 8; Treseder et al. 2004, p. 1831).
Furthermore, fire residence time may also influence the impact of fires on the Kern Canyon slender salamander and the relictual slender salamander as fires that burn at low severity for a long time may result in more direct mortality of salamanders than high-severity fires that move through the area quickly. Post-fire increases in soil temperature can be accompanied by long-term decreases in soil moisture and increases in soil water repellency, which may result in dry conditions that are intolerable for the Kern Canyon slender salamander and the relictual slender salamander (DeBano 2000, p. 196; Holden et al. 2013, p. 39). After fires occur, habitat may also be degraded by increased soil erosion, runoff, and sedimentation (Benavides-Solorio and MacDonald 2001, entire; Robichaud and Waldrop 1994, entire; Spigel and Robichaud 2007, entire). More research is necessary to better understand the relationships between wildfires, salamanders, and their habitat.
Large, catastrophic fire cannot be completely addressed by regulatory mechanisms. However, some management actions can reduce the potential severity or size of wildfires (Agee and Skinner 2005, entire; Safford et al. 2009, entire). Fuel reduction treatments, such as prescribed fire and mechanical thinning, can reduce the severity of a future fire (Agee and Skinner 2005, entire; Safford et al. 2009, entire). We have a limited understanding of the trade-off between impacts from conducting fuels treatments to prevent or reduce future fires and impacts from fires themselves to salamanders and their habitat (see sections on Timber Harvest and Hazard Tree Removal above). Fuels treatments that are carried out within habitat occupied by the salamanders may cause ground disturbance or result in modification of seep, spring, or creek margin habitat. Two species of terrestrial salamanders in the Sierra Nevada, the Sierra ensatina (
Additionally, if a wildfire becomes a threat to infrastructure, fire retardant may be used in areas occupied by the Kern Canyon slender salamander and the relictual slender salamander that are in proximity to development in the Lower Kern River Canyon and on Breckenridge Mountain. Fire retardants may negatively impact the survival of salamanders as fire retardants such as polybrominated diphenyl ethers can decrease survivorship and slow development and growth in amphibians (Coyle and Karasov 2010, pp. 136-138). Furthermore, post-fire restoration involving large machinery has the potential to impact salamander habitat through ground disturbance or result in direct mortality of salamanders that are active on the surface. Fire and management activities related to fire suppression and post-fire restoration may affect the Kern Canyon slender salamander and the relictual slender salamander through degradation of aquatic, mesic, and riparian habitats, loss of suitable cool and damp microclimates, loss of prey, and possibly direct mortality of individuals.
Because of the small ranges of the Kern Canyon slender salamander and the relictual slender salamander, entire geographic groups could be extirpated by fire, thus reducing species redundancy, and potentially causing loss in ecological representation. The mean size and intensity of fires has increased in the past decades. The trend in increasing annual area burned at high severity is expected to continue into the foreseeable future as a result of increasingly warmer and drier fire seasons due to climate change (Parks and Abatzoglou 2020, p. 6).
Climate change is the change in the mean or variability of one or more measures of climate that persist for an extended period, whether the change is due to natural variability or human activity (IPCC 2013, p. 1450). The climate has been warming at an unprecedented rate since the 1950s, and is likely to continue to increase, causing not only warmer conditions but also an increase in the intensity of storms (IPCC 2013, p. 4). The recent changes in climate are attributed to increased greenhouse gas emissions in the atmosphere, which are likely to continue to increase (IPCC 2013, pp. 4, 11-12, 19).
In California, the annual average temperatures have increased by about 0.8 °C (1.5 °F) since 1895 (Kadir et al. 2013, p. 38). Additionally, extreme heating events have increased throughout the State (Kadir et al. 2013, p. 48). Specifically, in the Sierra Nevada region, mean annual temperatures have generally increased by around 0.5-1.4 °C (1.0-2.5 °F) over the past 75-100 years (North 2012, p. 25). These trends are projected to continue, by all modern climate models, and to accelerate during coming decades. Within the Sierra Nevada, changes in climate are expected to vary in magnitude across the region with quicker warming trends and changes in precipitation at highest elevations (Dettinger et al. 2018, p. 5). The annual mean temperatures across the region are projected to warm by 1.0 °C (2.0 °F) by 2039 and by 2.5 °C (4.5 °F) by 2040-2069 as predicted by the average of 10 climate models (Abatzoglou 2013, entire; Pierce et al. 2013, p. 844; Hegewisch et al. 2018, unpaginated). Additionally, in the summer months of June, July, and August, mean temperatures are projected to increase by 3.3 °C (5.9 °F) by 2040-2069 in the Sierra Nevada region (Pierce et al. 2013, p. 842; Hegewisch et al. 2018, unpaginated).
With increasing temperatures and less snowfall, salamanders that occur at high elevations (such as relictual slender salamanders on Breckenridge Mountain) may experience extended periods of favorable conditions and may increase the time they spend on the surface until climatic conditions approach and surpass physiological limits. While temperature increases at high elevation may be within the thermal tolerances of the Kern Canyon slender salamander and the relictual slender salamander, temperature increases at low elevation may exceed salamander tolerances (Caruso and Rissler 2019, p. 12). At higher temperatures, salamanders must increase feeding frequency to maintain energy balances (Huey and Kingsolver 2019, entire). If salamanders are not able to increase feeding frequency or if prey are not available in sufficient quantities, then increased metabolism caused by temperature increases may have geographic group-level demographic consequences, such as decreased body sizes and growth rates (Caruso et al. 2014, p. 1,757; Muñoz et al. 2016, p. 8,744). Reductions in body size could lead to delayed maturity or reduced fecundity, ultimately leading to geographic group declines.
Future precipitation is predicted to vary less than temperature; long-term mean annual changes may be no more than plus or minus 10-15 percent of current totals (Dettinger et al. 2018, p. 5). However, precipitation extremes (both as deluge and drought) are expected to increase markedly under climate change (Dettinger et al. 2018, p. 5). As a result of projected warming, the transition from rain to snow during a storm is expected to rise by 457-914 m (1,500-3,000 ft) (Dettinger et al. 2018, p. 21). Sierra Nevada snowpacks will be unlikely to form below about 1,829 m (6,000 ft) elevation, and snowpacks will be reduced by more than 60 percent across most of the Sierra Nevada by the end of the century (Dettinger et al. 2018, p. 21). Losses of snowpack may be even greater due to feedback loops with warming trends causing snow cover losses, and snow cover losses resulting in warmer land surfaces, and thus enhanced warming trends in turn (Dettinger et al. 2018, p. 5). The higher snow-dominated elevations from 2,000-2,800 m (6,560-9,190 ft) will be the most sensitive to temperature increases (Point Blue 2011, p. 23). Seeps and springs fed by snowmelt may dry out or be more ephemeral during the non-winter months (Point Blue 2011, p. 24). This pattern could influence groundwater transport, and seeps and springs may be similarly depleted, leading to lower water levels and decreased area and hydroperiod (that is, duration of water retention) to support suitable habitat for the Kern Canyon slender salamander and the relictual slender salamander. More precipitation falling as rain and increased early snow melt is also expected to result in greater winter streamflow and floods that may impact salamander habitat by causing erosion of salamander habitat in stream margins (Dettinger et al. 2018, p. 5).
As a result of warmer temperatures, with corresponding tendencies for more rainfall, less snowfall, and earlier snowmelt, water will tend to exit bodies of surface water at high elevations earlier in the year (Harpold et al. 2015, entire). Additionally, the water that remains in habitats will evaporate and be used by plants more quickly due to warmer temperatures and increased evapotranspiration rates, so that by summer, soil moisture will be low (Harpold et al. 2015, entire). The average historical climatic water deficit, or the additional water that would have evaporated or transpired had it been present in the soils given the temperature, from 1990 to 2010 in the southern Sierra Nevada within the range of the Kern Canyon slender salamander and the relictual slender salamander is 840.6 mm (33.1 in) (Hegewisch et al. 2018, unpaginated). By 2039, the 20-year average climatic water deficit is projected to increase by 2.0-69.1 mm (0.1-2.7 in) and, by 2069, the 20-year average is projected to increase by 75.6-200.9 mm (3.0-7.9 in) (Hegewisch et al. 2018, unpaginated). Furthermore, total soil moisture in the summer is expected to decrease in areas at high elevation on Breckenridge Mountain (Hegewisch et al. 2018, unpaginated).
The Kern Canyon slender salamander and the relictual slender salamander will likely be impacted by climate change, but the full extent of impacts that climate change may have on terrestrial salamanders is poorly understood. Changing climatic conditions may have direct impacts on salamander physiology, survival, reproduction, recruitment, and population growth. Additionally, climate change may have indirect impacts on the species including changes in habitat quantity and quality, and prey distribution and abundance. For the Kern Canyon slender salamander and the relictual slender salamander to successfully forage and meet their energy requirements, temperature and moisture conditions must be suitable in adequate durations. Reduced sedimentary moisture may impact the survival of the Kern Canyon slender salamander and the relictual slender salamander by further constraining the time that the salamanders can be active on the surface. Reduced ambient moisture may also decrease the amount of suitable microhabitat for breeding and rearing as the salamanders are thought to need cool and damp protected microhabitat for egg laying. Additionally, warmer, and drier fire seasons due to climate change are predicted to result in more frequent fires burning at high severity (Parks and Abatzoglou 2020, entire).
Overall, the Sierra Nevada region is likely to be much drier in the future and the climatic water deficit will increase over the next 50 years due to climate change (Dettinger et al. 2018, p. 23; Hegewisch et al. 2018, unpaginated). Climate change is expected to affect the Kern Canyon slender salamander and the relictual slender salamander through degradation of seep and spring habitat, loss of suitable microhabitat conditions, and possibly, reduction in survival and fecundity of salamanders with risk varying across habitat type and elevation.
The Kern Canyon slender salamander is listed in the State of California as a threatened species. As a threatened species under the CESA, “take,” which is described as hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill, of the Kern Canyon slender salamander is prohibited. The relictual slender salamander is designated as a California Species of Special Concern. The Species of Special Concern designation carries no formal legal protection; the intent of the designation is to focus attention on animals of conservation risk, stimulate research on poorly known species, and achieve conservation and recovery of these animals before they meet criteria for listing as threatened or endangered.
The Kern Canyon slender salamander and the relictual slender salamander are designated by the USFS as Species of Conservation Concern. The USFS land management plans are designed to consider the needs of the Species of Conservation Concern and guide management that sustains habitat or conditions to support or restore populations of Species of Conservation Concern. While the current draft land management plan for Sequoia National Forest does not include specific measures for the Kern Canyon slender salamander or the relictual slender salamander, the land management plan outlines desired habitat management conditions for riparian areas which,
We describe the current condition of the Kern Canyon slender salamander and the relictual slender salamander by characterizing their status in terms of resiliency, redundancy, and representation. We analyze the current conditions of each geographic group of each species by considering the threats and their effects on individual and population needs. The analysis of the current condition of each geographic group, which we use as a proxy for populations due to limited data on the two species, allows us to assess geographic group resiliency.
There are no population estimates for the Kern Canyon slender salamander or the relictual slender salamander. In the absence of population estimates, our analysis of the current condition of geographic groups is limited to the available records of observations for the species and the distribution of threats across the landscape. Many of the recorded observations of the species are from sites that were surveyed only once 30-40 years ago, and we have no more current information on the presence or absence of individuals from these sites. In these cases, there is uncertainty in assessing the current condition of the salamanders at the site. The lack of information on population size and structure of the Kern Canyon slender salamander and the relictual slender salamander and the absence of robust records of observations contributes to uncertainty in the analysis of the current condition of the species.
As discussed above in Background, the Kern Canyon slender salamander is currently considered extant at 8 sites in the Lower Kern River Canyon geographic group and the Erskine Creek Canyon geographic group. Species experts indicate that the sites within the Lower Kern River Canyon have been searched for the species in recent years; however, the species has not been found during these searches (Jockusch 2021b, pers. comm.). Because survey results are reported only when the species is present (that is, a positive survey) and not reported when the species is not encountered (that is, a negative survey), our analysis of the current condition of the species is limited to only positive surveys. Without documentation of negative surveys at these locations, we are unable to determine whether the species has been extirpated from these areas or if the species is still present but the current level of survey effort is inadequate to detect them. Species experts also indicate that the abundance of the species has declined across the range of the species (Jockusch 2021b, pers. comm.). Furthermore, the Kern Canyon slender salamander is currently found in wet patches of habitat in riparian habitat and the species no longer seems to occupy open grassland habitat (Jockusch 2021b, pers. comm.).
Development and roads (including State Route 178) are present throughout the Lower Kern River Canyon. The area has high recreation use with many access roads, trails, and camping areas (Service 2022a, figure 16). Dispersed camping was prohibited at some camp sites along the Lower Kern River beginning in the 1980s; therefore, impacts of recreation in this area have likely decreased since that time. Grazing takes place throughout the Lower Kern River Canyon and sensitive canyon bottom habitat has been degraded by ground disturbance and trampling by livestock (USFS 2011a, p. 44; Service 2022a, figure 17). However, between 2003 and 2004, three springs within Dougherty Canyon were fenced to exclude livestock and to protect the riparian vegetation associated within the area of three of the sites occupied by Kern Canyon slender salamander (USFS 2011a, p. 76).
Commercial timber harvest has not occurred in the area (Service 2022a, figure 18). However, tree mortality associated with drought and insect outbreaks has occurred in proximity to occupied sites, which may result in timber harvest to remove dead trees and hazard tree removal along State Route 178, USFS roads, or trails. Additionally, there is an electrical substation within 1,100 m (3,609 ft) of the easternmost site of this geographic group, and a transmission line runs south from the substation passing within 900 m (2,953 ft) of the same site (Service 2022a, figure 20). The impact of maintenance of this utility infrastructure on Kern Canyon slender salamander habitat may be low due to the distance between the utility infrastructure and the patches of habitat occupied by the species. From 1988-2017, this geographic group experienced frequent fires at a range of severities that may have impacted the condition of habitat (Service 2022a, figure 21). Moreover, fire suppression has affected riparian habitat by increasing conifer density and decreasing riparian herbaceous vegetation (USFS 2019b, p. 104). The fire threat remains high to very high throughout the canyon (Service 2022a, figure 22).
No information is available on dispersal or the availability of mates within the Lower Kern River Canyon. However, species experts have opined that the abundance of the Kern Canyon slender salamander has declined across its range (Jockusch 2021b, pers. comm.). Additionally, all sites are 300 m (984 ft) or more apart, and a high density of roads and trails extends throughout the canyon. Therefore, dispersal and access to mates in this geographic group is likely limited given the poor dispersal ability of slender salamanders and the small numbers of individuals that have been observed in the Lower Kern River Canyon. Considering the threats currently impacting this species, the habitat characteristics of seeps, springs, and streams; cool, damp microhabitats; and debris are likely degraded.
Overall, the resiliency of the Lower Kern River Canyon geographic group is reduced from historical conditions due to the possible extirpation of the species from many sites within the geographic group and ongoing threats to habitat from road construction and maintenance, recreation, grazing, fire, infrastructure development, and climate change.
This geographic group experiences many of the same threats that were described for the Lower Kern River Canyon geographic group, though the sites of this geographic group are set back and separated from State Route 178, the electrical substation, and power lines. However, dirt roads run along both Erskine Creek and Bodfish Creek. Fires of moderate and high severity in 1984 and 2010 likely degraded habitat in this geographic group (Service 2022a, figure 21), and the fire threat remains very high throughout the area (Service 2022a, figure 22). Additionally, this geographic group is outside of Sequoia National Forest, so the Kern Canyon slender salamander does not receive the same conservation measures as it does in Sequoia National Forest. Overall, the current condition of this geographic group is likely better than the Lower Kern River Canyon geographic group as habitat outside of the Lower Kern River Canyon is less impacted by recreation and grazing. However, less is known about land management outside of the National Forest. The resiliency of this geographic group is likely reduced from historical conditions due to reduced abundance across the range of the species as well as past and ongoing habitat degradation from road construction and maintenance, fire, and climate change.
As discussed in Background, the relictual slender salamander historically occupied 13 sites that we categorized into three geographic groups: the Lower Kern River Canyon geographic group, the Lucas Creek geographic group, and the Squirrel Meadow geographic group. The relictual slender salamander is presumed to be extirpated from all sites within the Lower Kern River Canyon geographic group. The two extant geographic groups are associated with patchy mesic habitat in conifer forest and oak woodland on Breckenridge Mountain (Hansen 2021, pers. comm.). The habitat currently occupied by the species is estimated to consist of less than 0.4 ha (1 ac) (Hansen 2021, pers. comm.). The current condition of the relictual slender salamander has been impacted by road construction, grazing, timber harvest, hazard tree removal, fire, and climate change.
The threats that are likely currently impacting this geographic group are road construction and maintenance, recreation, timber harvest, hazard tree removal, grazing, fire, and climate change. A county road runs between the sites in this geographic group and there are several USFS roads and trails throughout the area (Service 2022a, figure 10). All sites are within the Breckenridge grazing allotment (Service 2022a, figure 11). Grazing is allowed from April 1 to October 15, when salamanders on Breckenridge Mountain have been found active on the surface (Stewart 2010, p. 10). USFS timber harvest has taken place near all sites within this geographic group in 1987, 1988, 1996, and 2013, and habitat at these sites may still be impacted by legacy effects of these timber harvests (Service 2022a, figure 12). Additionally, extensive tree mortality necessitating hazard tree removal has occurred near Lucas Creek and its tributaries (Service 2022a, figure 13). This geographic group has not been impacted by fire since 1984. However, the fire threat as measured by CAL FIRE is high to very high at the sites within this geographic group (Service 2022a, figure 14, figure 15).
Considering the ongoing threats to this geographic group and the impacts of these threats, the habitat characteristics of seeps, springs, and streams; cool and damp microhabitat; and debris may be degraded. Dispersal may be restricted by the distance between occupied sites and the presence of roads, trails, and timber harvest. Regarding resiliency, this geographic group may be vulnerable to stochastic events because of its small size and the ongoing threats to habitat.
In recent years, the relictual slender salamander appears to have rebounded at the site, as 15 salamanders were found in 2017 and 7 salamanders were observed in 2021 (Jockusch 2021a, pers. comm.; Jockusch 2021b, pers. comm; CNDDB 2022, unpaginated). Additionally, 9 of the salamanders found in 2017 were gravid females that were found associated with a communal
Road construction, timber harvest, hazard tree removal, fire, climate change, and possibly grazing have impacted the relictual slender salamander in this geographic group. As mentioned above, a USFS road runs directly through the seep that provides important habitat for this geographic group, and other roads are located adjacent to the site (Service 2022a, figure 10). The site northeast of Squirrel Meadow is outside of the boundaries of USFS grazing allotments (Service 2022a, figure 11). However, other sites are within the Breckenridge grazing allotment (Jockusch 2021b, pers. comm.). Additionally, timber harvest in 2013 and extensive tree mortality have occurred along the roads near the site northeast of Squirrel Meadow (Service 2022a, figure 12, figure 13). The fire threat is very high for this geographic group (Service 2022a, figure 15). Dispersal among sites in this geographic group is unknown but may be limited between sites that are within different drainages and separated by roads.
Considering the past threats that considerably altered habitat and the ongoing threats of road maintenance, grazing, fire, and climate change, the habitat characteristics of seeps, springs, and streams; cool and damp microhabitats; and debris are likely degraded. Overall, the resiliency of this geographic group is reduced from historical conditions due to habitat degradation and the ongoing threats to the habitat.
We now will present our analysis of the future conditions of the Kern Canyon slender salamander, considering how those past and current factors discussed will continue to act on the species into the future for our foreseeable future timeframe of 50 years. While our analysis of the future conditions of the Kern Canyon slender salamander is based on the best scientific information available, substantial uncertainty remains in our understanding of these species and how they will respond to future conditions. The uncertainty in the current distribution and current condition of the Kern Canyon slender salamander contributes uncertainty to our assessment of the long-term future viability of the species.
As part of the SSA, we also developed two future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the relictual slender salamander. Our scenarios examined possible future impacts of climate change, timber harvest, hazard tree removal, and fire. Because we determined that the current condition of the relictual slender salamander was consistent with an endangered species (see
The future scenarios consider the interactive effects of future climate change, described by RCP scenarios contributed by the Working Group III to the Fifth Assessment Report and described in the most recent Synthesis Report of the Intergovernmental Panel on Climate Change (IPCC 2014, pp. 9, 22, 57). In our future conditions analysis, we consider the “intermediate” emissions scenario of RCP 4.5 (Scenario 1) and the “very high” emissions scenario of RCP 8.5 (Scenario 2).
Under both future scenarios, the threats that interact synergistically with climate change are expected to grow in magnitude over time with increasing greenhouse gas emissions. The threat of fire is associated with the effects of climate change, such as increased drought, lower soil moisture, and decreased snowpack. Therefore, fire will continue to be a threat into the future with greater fire threat associated with increasing greenhouse emissions. We expect the pattern of increasing severity of fire and area burned in fires will continue to increase into the future under both future scenarios, with greater increases under Scenario 2. Additionally, timber harvest of dead trees and hazard tree removal will continue to increase in magnitude in the future with increasing greenhouse gas emissions, as drought conditions will continue to weaken trees and make them more susceptible to herbivory and disease. We do not have information to indicate that the existing threats of roads, recreation, grazing, and infrastructure will change in magnitude in the future. Furthermore, we have limited information on predation of the Kern Canyon slender salamander, but there is no indication that predation will increase from current levels in the future. As most of the range of the salamander is within National Forest lands where it is considered a USFS Species of Conservation Concern, the USFS is expected to continue to minimize the impacts of the threats posed by land management activities into the future. Therefore, these existing threats are expected to persist at the same magnitude as under the current condition for both future scenarios.
We examine the resiliency, redundancy, and representation of the Kern Canyon slender salamander under both plausible scenarios. Resiliency of geographic groups of this species depends on the availability of seeps, springs, and streams; cool and damp microhabitat; small invertebrate prey; and mates; and how these habitat factors influence species survival, dispersal, fecundity, and abundance. As we have a limited understanding of the species biology and the current condition of the species, our ability to predict the future condition of the species based on changes in availability of individual and population needs is somewhat limited. However, we can predict the magnitude
Under Scenario 1, with RCP 4.5 greenhouse gas emissions, moderate warming and drying will occur throughout the range of the Kern Canyon slender salamander. Reductions in soil moisture and snow water equivalent are expected to more than double within 50 years. We expect these changes in climate will result in reduced water flow and more arid conditions in slender salamander habitat. Drying will be more extreme in the high-elevation areas occupied by the species (Dettinger et al. 2018, p. 5). In these areas, the April 1st snow water equivalent will be reduced by up to 81 percent in the next 50 years. Reduction in snowpack will result in reduced water retention and runoff in the spring and summer, with runoff occurring earlier in the spring. Summer soil moisture is also projected to decline over time for all geographic groups of both species. Within 50 years, it is likely that water levels will be reduced in seeps, springs, and perennial springs, and some water sources may have truncated periods of water retention. Additionally, there may be less cool and moist microhabitat at high elevations. We expect that these changes in hydrology will reduce the suitability and availability of habitat for the Kern Canyon slender.
Additionally, under Scenario 1, both the threat of fire and the severity of fires will increase throughout the range of the Kern Canyon slender salamander. The species and its habitat will also be impacted by more frequent extreme weather events including winter storms and flooding. Increased fire and flooding will likely degrade seep, spring, and stream margin habitat and may result in direct mortality of salamanders. Additionally, increased tree mortality will lead to an increase in timber harvest of dead trees and hazard tree removal along roads and trails. The presence of roads, recreation, grazing, timber harvest, and infrastructure will continue to impact the species and their habitat over the next 50 years. The USFS will continue to minimize impacts to both species within the National Forests; however, the Kern Canyon slender salamander sites located on private lands are not afforded the same protections.
Under Scenario 2, higher greenhouse gas emissions past mid-century (RCP 8.5) will result in greater warming and drying, increased threat of fire, and greater frequency of extreme weather events than under Scenario 1. The impacts from roads, recreation, grazing, timber harvest, and infrastructure are expected to continue to pose a threat to the Kern Canyon slender salamander and its habitat at the same magnitude as under the current conditions. The USFS will continue to minimize impacts to the species within the National Forest; however, the Kern Canyon slender salamander sites located on private lands are not afforded the same protections.
Within 50 years, under Scenario 2, extreme weather events will occur more frequently. Additionally, temperatures and fire threat will increase, and April 1st snow water equivalent and summer total soil moisture will decrease to a greater degree than under Scenario 1. These changes will likely result in reduction of seep, spring, and stream habitats and suitable microhabitats. Loss of habitat will occur more often at high elevations where drying will be most severe. The April 1st snow water equivalent is predicted to decrease by up to 99 percent and summer total soil moisture is predicted to decrease by up to 27 percent at high elevations. Furthermore, prolonged droughts may reduce the time that the salamanders can be active on the surface without the risk of desiccation. At higher elevations, temperature increases may result in extended periods of favorable conditions, and salamanders may increase their surface activity. However, the dry conditions predicted under this scenario are expected to restrict the surface activity of salamanders at higher elevations despite increased temperatures. At lower elevations, temperature increases may exceed the tolerances of the species, resulting in restricted surface activity. Restricted surface activity at all elevations would limit the ability of salamanders to find prey and mates resulting in lower survival and fecundity.
The following sections summarize the conditions of the Kern Canyon slender salamander under both future scenarios based upon the best available information.
Under Scenario 1 within 50 years, we expect that the water level of the seeps, springs, and streams that provide habitat for the Kern Canyon slender salamander will decline resulting in reduced condition of habitat. Habitat will also continue to be impacted by roads, heavy recreation use, grazing, infrastructure, and more frequent fires. We anticipate that the resiliency of both geographic groups will likely be slightly reduced from the current condition due to this habitat degradation. In 50 years, we expect that reductions in the quantity and quality of suitable habitat will result in minor reductions in the survival and abundance of Kern Canyon slender salamander within both geographic groups. We expect that the resiliency of both geographic groups of Kern Canyon slender salamander will be slightly reduced from the current condition. Both geographic groups are expected to retain occupied sites and, therefore, the species will maintain its current level of redundancy. We anticipate the Kern Canyon slender salamander will also retain ecological representation that is similar to the current condition. However, the Kern Canyon slender salamander will continue to be vulnerable to catastrophic events such as fires that are expected to occur more frequently under Scenario 1.
Under Scenario 2 within 50 years, we expect that the water level of the seeps, springs, and streams that provide habitat for the Kern Canyon slender salamander will decline. Additionally, as most sites occupied by the Kern Canyon slender salamander are located within narrow canyons along the margins of creeks and streams, habitat within both geographic groups of the Kern Canyon slender salamander will likely be degraded by more frequent higher volume precipitation and flooding events. We expect that this loss of habitat combined with habitat degradation from the continued impact of high recreation use, grazing, road, infrastructure, and increased incidence of fire, will likely result in reductions in survival and abundance of the Kern Canyon slender salamander within 50 years. As a result, the resiliency of both geographic groups will likely be reduced from the current condition. We expect that habitat loss will result in fewer occupied sites within 50 years. Therefore, within 50 years, we expect that the redundancy and representation of the species will be further reduced from the current condition, as the species will occupy fewer sites and exist in a further limited ecological setting. We anticipate Kern Canyon slender salamander will be more vulnerable to
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.
In this proposed rule, we present summary evaluations of eight threats for the Kern Canyon slender salamander and the relictual slender salamander: roads (Factor A), recreation (Factor A), grazing (Factor A), timber harvest (Factor A), hazard tree removal (Factor A), infrastructure development (Factor A), fire (Factor A), and climate change (Factor E). We also evaluate existing regulatory mechanisms (Factor D) and ongoing conservation measures.
In the SSA, we also considered four additional threats: Overutilization due to recreational, educational, and scientific use (Factor B); disease (Factor C); predation (Factor C); and effects associated with small population size (Factor E). We concluded that, as indicated by the best available scientific and commercial information, these threats are currently having little to no impact on either the Kern Canyon slender salamander or the relictual slender salamander, and thus their overall effect now and into the future is expected to be minimal. However, we consider them in the determination for each species, because although these minor threats may have low impacts on their own, combined with impacts of other threats, they could further reduce the already low number of Kern Canyon slender salamanders and relictual slender salamanders. For full descriptions of all threats and how they impact the species, please see the SSA report (Service 2022a, pp. 20-31).
For the purposes of this assessment, we considered the foreseeable future to be 50 years. This time period represents our best professional judgment of the foreseeable future conditions related to the range of available climate change models and for reasonable extrapolations of current trends.
The Kern Canyon slender salamander is a narrow endemic that inhabits a limited range, with individuals recorded from a small number of sites along the Lower Kern River Canyon and associated creeks. The species has been extirpated from multiple historically occupied sites within the Lower Kern River Canyon due in part to effects associated with road construction from the widening of State Route 178 (Factor A). The species also has reduced representation from historical conditions, as it is no longer found in grassland habitats.
Currently, habitat supporting the Kern Canyon slender salamander is affected by recreation (Factor A), grazing (Factor A), and continuing hydrologic effects associated with roads. These threats continue to degrade the seep and spring habitat, and in some rare cases may result in direct mortality of individual Kern Canyon slender salamanders. Occupied areas in the lower Kern River Canyon are particularly affected by recreation and OHV use. Commercial timber harvest (Factor A) is having only a minimal impact on the Kern Canyon slender salamander, as less than one percent of the species' range is subject to timber harvest. Hazard tree removal (Factor A) and timber harvest of dead trees is currently minimally impacting the Kern Canyon slender salamander as hazard tree removal only impacts small areas of habitat and is unlikely to result in mortality. Fire (Factor A) currently presents one of the largest risks to the Kern Canyon slender salamander. The threat of fire in Kern Canyon slender salamander habitat is high to very high throughout the range of the species, and few regulatory mechanisms are available to address the risk of catastrophic wildfire to the species.
Many of the effects associated with the other threats impacting the species are being reduced in magnitude due to regulatory mechanisms (Factor D) implemented by Sequoia National Forest. Sensitive riparian areas have been gated from OHVs and fenced off from livestock.
Although the Kern Canyon slender salamander is currently being impacted by these threats and has been extirpated from some sites in the Kern Canyon geographic group, the species continues to occupy habitat spread throughout multiple drainages and at a range of elevations (2,350-5,500 ft (716-1,676 m)). Therefore, the species currently has sufficient redundancy and representation to withstand loss from a catastrophic event such as wildfire. Although the threats described above are continuing to degrade the seep, spring, and stream habitat that supports the Kern Canyon slender salamander, the species maintains some population resiliency, redundancy, and representation. Additionally, regulatory mechanisms implemented by the Sequoia National Forest are reducing the magnitude of threats, and State listing under CESA provides additional take prohibitions for the species. For that reason, we found that the Kern Canyon slender salamander is not endangered throughout all of its range. However, we expect that threats affecting the species will increase in magnitude into the future. We analyzed threats under two plausible future scenarios: the “intermediate” emissions scenario of RCP 4.5 (Scenario 1) and the “very high” emissions scenario of RCP 8.5 (Scenario 2). Under both plausible future scenarios, climate change (Factor E) is expected to reduce the water level of the seeps and springs that support the Kern Canyon slender salamander. Habitat will also continue to be impacted by roads, recreation, and grazing. Climate change is expected to intensify tree mortality and fire, potentially increasing the need for timber harvest and hazard tree removal. Given the high risk of fire in the species' range, more populations could be lost to fire, and under Scenario 2, more populations are likely to be lost. In all future scenarios, we expect there will be further reductions in population resiliency and species redundancy.
After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that although the Kern Canyon slender salamander has reduced population resiliency and species redundancy and representation from its historical condition, it is not currently in danger of extinction throughout all of its range. However, the magnitude of all threats across the species' range is expected to increase in the foreseeable future, particularly as effects associated with climate change increase the frequency and severity of fire and the need for hazard tree removal, and the cumulative effect of those threats. Thus, after assessing the best available
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. The court in
Following the court's holding in
For the Kern Canyon slender salamander, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Roads (Factor A), recreation (Factor A); grazing (Factor A); timber harvest (Factor A); hazard tree removal (Factor A); infrastructure development (Factor A); fire (Factor A); overutilization due to recreational, educational, and scientific use (Factor B); disease (Factor C); predation (Factor C); effects associated with small population size (Factor E); and climate change (Factor E). We also evaluated existing regulatory mechanisms (Factor D). We found that the Kern Canyon geographic group may have a concentration of threats, as it faces additional threats due to roads, recreation, and infrastructure. However, the impact of these threats is only slightly higher in the Kern Canyon geographic group than in the Erskine Creek geographic group. Additionally, the Kern Canyon geographic group is within the boundary of Sequoia National Forest, so although some threats are of a higher magnitude there, ongoing measures undertaken by the National Forest are decreasing the impacts of grazing and roads. Thus, neither geographic group is so reduced or faces such threats that it would be likely to be in danger of extinction now. Overall, we found no concentration of threats in any portion of the Kern Canyon slender salamander's range at a biologically meaningful scale.
Thus, there are no portions of the species' range where the species has a different status from its rangewide status. Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This does not conflict with the courts' holdings in
Our review of the best available scientific and commercial information indicates that the Kern Canyon slender salamander meets the definition of a threatened species. Therefore, we propose to list the Kern Canyon slender salamander as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
The relictual slender salamander has a very narrow range; it is currently found from 8 sites, and the two extant geographic groups are separated by less than 5 km (3.1 mi). Historically, the relictual slender salamander occupied additional sites along route 178 in the Lower Kern River Canyon, but repeated searches of the area have failed to find the species, and species experts consider the relictual slender salamander to be extirpated from that area.
Currently, habitat supporting the relictual slender salamander is affected by recreation (Factor A), including a known primitive campsite on Breckenridge Mountain, grazing (Factor A), and continuing hydrologic effects associated with the small roads that pass through occupied areas (Factor A). These threats continue to degrade the seep and spring habitat that supports the species. Grazing is currently occurring in areas on Breckenridge Mountain during the times when the slender salamander is active on the surface, further degrading suitable habitat for the species. Commercial timber harvest (Factor A) has occurred in both geographic groups, and historical effects of logging may still be present in occupied habitat. Hazard tree removal (Factor A) and timber harvest of dead trees also have substantial impact on the species, particularly in the Lucas Creek area, which has experienced a high level of tree mortality. Existing sites in both extant geographic groups, particularly the Lucas Creek geographic group, are also far enough apart that relictual slender salamanders may not be able to disperse between occupied sites.
Fire (Factor A) currently presents one of the largest risks to the relictual slender salamander. The threat of fire in the Lucas Creek geographic group is particularly high, and the area has not burned since before 1984. However, effects associated with the other threats impacting the species are being reduced in magnitude due to regulatory mechanisms (Factor D) implemented by Sequoia National Forest; for example, some areas on Breckenridge Mountain have been fenced off from livestock grazing. However, few regulatory mechanisms are available to address the risk of catastrophic wildfire to the species, and the range of the species is limited enough that a single fire could cause the extinction of the species.
After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1)
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 relictual slender salamander 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 relictual slender salamander 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 relictual slender salamander meets the definition of an endangered species. Therefore, we propose to list the relictual slender salamander 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, including the Service, 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 protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed (
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 (for example, restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.
If these species are 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 State of California would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Kern Canyon slender salamander and the relictual slender salamander. Information on our grant programs that are available to aid species recovery can be found at:
Although the Kern Canyon slender salamander and the relictual slender salamander are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these 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. 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
Federal agency actions within the species' habitat that may require conferencing with the Service as described in the preceding paragraph during the time when the Kern Canyon slender salamander and the relictual slender salamander are proposed for listing include land management or other landscape-altering activities on Federal lands administered by the USFS (Sequoia National Forest) whose effects extend into the species' range, and would adversely affect either species at a scale and magnitude where their continued existence would be jeopardized (for example, widespread stream channelization or diversion, modification of spring openings, diversion of surface or ground water flow, or other activities that modify large portions of seep, spring, and stream habitat).
Once these species are listed, the requirement for consultation with the Service under 7(a)(2) applies. The threshold for consultation under 7(a)(2) is “may affect,” and some examples of Federal agency actions within the species' habitat that may then require consultation as described above could include management and any other landscape-altering activities on Federal lands administered by the USFS (Sequoia National Forest) and the BLM; 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.
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
(1) Vehicle use on existing roads and trails in compliance with the Sequoia National Forest land management plan.
(2) Recreational use with minimal ground disturbance (for example, hiking, walking) in compliance with the Sequoia National Forest land management plan.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act for the relictual slender salamander if they are not authorized in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) Destruction or alteration of the species' habitat by modification of spring opening, stream channelization or diversion, discharge of fill material, draining, ditching, tiling, or diversion of surface or ground water flow;
(3) Unauthorized modification of riparian areas or disturbance of rocks and woody debris in riparian areas in which the species is known to occur;
(4) Incompatible livestock grazing that results in direct or indirect destruction of riparian habitat; and
(5) Introduction of nonnative species that compete with or prey upon the relictual slender salamander species, such as the introduction of competing, nonnative aquatic animals to the State of California.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Sacramento Fish and Wildlife Office (see
Regarding the Kern Canyon slender salamander, the Act allows the Secretary to promulgate protective regulations for threatened species pursuant to section 4(d) of the Act. The discussion below regarding protective regulations for the Kern Canyon slender salamander under section 4(d) of the Act complies with our policy.
Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened species. The U.S. Supreme Court has noted that statutory language similar to the language in section 4(d) of the Act authorizing the Secretary to take action that she “deems necessary and advisable” affords a large degree of deference to the agency (see
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld, as a valid exercise of agency authority, rules developed under section 4(d) that included limited prohibitions against takings (see
In the early days of the Act, the Service published at 50 CFR 17.31 a general protective regulation that would apply to each threatened wildlife species, unless we were to promulgate a separate species-specific protective regulation for that species. In the wake of the court's
The provisions of this proposed 4(d) rule would promote conservation of the Kern Canyon slender salamander by encouraging management of the habitat for the species in ways that facilitate conservation for the species. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the Kern Canyon slender salamander. This proposed 4(d) rule would apply only if and when we make final the listing of the Kern Canyon slender salamander as a threatened species.
As mentioned previously in Available Conservation Measures, section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of Federal actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
These requirements are the same for a threatened species with a species-specific 4(d) rule. For example, a Federal agency's determination that an action is “not likely to adversely affect” a threatened species will require the Service's written concurrence. Similarly, a Federal agency's determination that an action is “likely to adversely affect” a threatened species will require formal consultation and the formulation of a biological opinion.
Exercising the Secretary's authority under section 4(d) of the Act, we have developed a proposed rule that is designed to address the Kern Canyon slender salamander's conservation needs. As discussed previously in Summary of Biological Status and Threats, we have concluded that the Kern Canyon slender salamander is likely to become in danger of extinction within the foreseeable future primarily due to grazing, recreation, fire, and climate change. Section 4(d) requires the Secretary to issue such regulations as she deems necessary and advisable to provide for the conservation of each threatened species and authorizes the Secretary to include among those protective regulations any of the prohibitions that section 9(a)(2) of the Act prescribes for endangered species. We find that, if finalized, the protections, prohibitions, and exceptions in this proposed rule as a whole satisfy the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Kern Canyon slender salamander.
The protective regulations we are proposing for the Kern Canyon slender salamander incorporate prohibitions from section 9(a)(1) to address the threats to the species. Section 9(a)(1) prohibits the following activities for endangered wildlife: importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. This protective regulation includes all of these prohibitions for the Kern Canyon slender salamander because the species is at risk of extinction in the foreseeable future and putting these prohibitions in place will help to prevent further declines, preserve the species' remaining populations, and decrease synergistic, negative effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the conservation of the Kern Canyon slender salamander by prohibiting the following activities, unless they fall within specific exceptions or are otherwise authorized or permitted: importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.
Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating take would help preserve the species' remaining populations and
Exceptions to the prohibition on take would include all of the general exceptions to the prohibition against take of endangered wildlife, as set forth in 50 CFR 17.21 and certain other specific activities that we propose for exception, as described below.
The proposed 4(d) rule would also provide for the conservation of the species by allowing exceptions that incentivize conservation actions or that, while they may have some minimal level of take of the Kern Canyon slender salamander, are not expected to rise to the level that would have a negative impact (that is, would have only de minimis impacts) on the species' conservation. The proposed exceptions to these prohibitions include:
(1) Fuels management activities that are expected to have negligible impacts to the Kern Canyon slender salamander and its habitat, as long as they are conducted or authorized by the Federal agency with jurisdiction over the land where the activities occur. This includes fuels management activities developed by a Federal, State, county, or other entity to reduce the risk or severity of fire in Kern Canyon slender salamander habitat and to protect and maintain habitat that supports the species. These activities should be in accordance with established and recognized fuels management plans that include measures to minimize impacts to the species and its habitat, and:
(2) Fuels management activities on private lands where there is no Federal nexus. This exception applies to those situations, whether currently existing or that may develop in the future, where fuels management activities are essential to reduce the risk of catastrophic wildfire, and when such activities will be carried out in accordance with an established and recognized fuels or forest management plan that includes measures to minimize impacts to the species and its habitat.
Despite these prohibitions regarding threatened species, we may under certain circumstances issue permits to carry out one or more otherwise-prohibited activities, including those described above. The regulations that govern permits for threatened wildlife state that the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species. These include permits issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act (50 CFR 17.32). The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to the conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we must cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the Kern Canyon slender salamander that may result in otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or our ability to enter into partnerships for the management and protection of the Kern Canyon slender salamander. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between us and other Federal agencies, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that we could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).
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,
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 materials; or experts' opinions or personal knowledge.
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 and in the 4(d) rule for the Kern Canyon slender salamander. 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)) state that a 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.”
As discussed earlier in this document, no imminent threat of collection or vandalism identified under Factor B currently exists for these species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA report and proposed listing determination for both the Kern Canyon slender salamander and the relictual slender salamander, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to both the Kern Canyon slender salamander and the relictual slender salamander. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met, we have determined that the designation of critical habitat is prudent for both the Kern Canyon slender salamander and the relictual slender salamander.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Kern Canyon slender salamander and the relictual slender salamander is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical
We reviewed the available information pertaining to the biological needs of these two species and habitat characteristics where the species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Kern Canyon slender salamander and the relictual slender salamander.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species, and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features” as the features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
The Kern Canyon slender salamander and the relictual slender salamander are endemic to, and occur exclusively within, humid habitat associated with seeps, springs, and streams in the Greenhorn and Piute Mountains in the southern Sierra Nevada in Kern County. Both species' habitat is constrained to riparian zones adjacent to seeps, springs, and streams due to the narrow physiological tolerances of both species. Habitat within larger fast-moving bodies of water, such as the Kern River, are not suitable habitat and do not contain the physical or biological features that support the Kern Canyon slender salamander or the relictual slender salamander.
Primary habitat for the Kern Canyon slender salamander is composed of wet stream and seep margins within rocky, narrow canyons supporting chapparal shrubs, sycamore (
Primary habitat for the relictual slender salamander is composed of seeps, perennial springs, and streams in rocky habitat supporting limited tree cover of oaks (
We do not know how much suitable habitat and habitat connectivity is required to sustain viability of either the Kern Canyon slender salamander or the relictual slender salamander. There may be distinct, non-interbreeding populations or there may be some level of dispersal between localities associated with the same streams or different aquatic features providing at least a low level of connectivity between individual populations. The minimum number of populations necessary to sustain the salamanders is unknown. The distribution and quantity of available suitable habitat across the range necessary to support populations of either the Kern Canyon slender salamander or the relictual slender salamander are unknown.
While the amount of habitat necessary to support Kern Canyon slender salamander and relictual slender salamander individual and population growth and normal behavior is unknown, preservation of these features is essential for the species.
The diets of the Kern Canyon slender salamander and the relictual slender salamander are assumed to be similar to other
Water is essential for survival of the Kern Canyon slender salamander and the relictual slender salamander. We have no specific information on the amount of water they require; however, both species are restricted to patches of humid habitat near sources of water such as small seeps, springs, and streams. The relictual slender salamander has a closer association with water than other species of terrestrial salamanders as relictual slender salamanders have been found submerged in water and under cover objects with water beneath them. During time of drought, water sources may become scarce, and associated riparian areas may become hot and dry. The relictual slender salamander and the Kern Canyon slender salamander may need to expend more energy and time in search of new water sources and humid habitat or may restrict surface activity and foraging time to seek shelter in subterranean refugia to avoid desiccation during time of drought.
Kern Canyon slender salamanders and relictual slender salamanders require refugia to regulate body temperature,
Virtually no information is available concerning the life cycle of the Kern Canyon slender salamander. Two communal nests of the relictual slender salamander containing numerous gravid females and approximately 125-200 eggs within each nest were observed during the months of March and June (Wake et al. 2002, p. 1026; Jockusch et al. 2012, p. 17; Jockusch 2021a, pers. comm.). These nests were associated with rocks adjacent to seeps (Jockusch 2021a, pers. comm.). Field observations of relictual slender salamanders indicate that gravid females may carry 16-22 eggs (Jockusch 2021b, pers. comm.). In general, female
No information is available as to whether eggs or juvenile Kern Canyon slender salamanders and relictual slender salamanders require different habitat than adults. However, based on their small size and limited range, they likely are found in the same habitat.
We derive the specific physical or biological features essential to the conservation of the Kern Canyon slender salamander and the relictual slender salamander from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2022a, entire; available on
(1) Aquatic habitat consisting of seeps, springs, and streams.
(2) Riparian habitat consisting of terrestrial areas adjacent to seeps, springs, and streams that contain:
a. Sufficient refugia consisting of woody debris, leaf litter, and rocks with abundant interstitial spaces to facilitate safe resting, foraging, and movement;
b. Suitable prey to allow for survival, growth, and reproduction; and
c. Riparian vegetation that provides shade cover contributing to cool and moist surface conditions for maintaining homeostasis, foraging opportunities, and physical structure for predator avoidance.
(3) Corridors of aquatic habitat or riparian habitat that provide connectivity between patches of occupied habitat to allow for movement of individuals.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Kern Canyon slender salamander and relictual slender salamander may require special management considerations or protection to reduce threats posed by: Destructive fires; climate change; and activities that cause surface disturbance including forest management activities (for example, fuels reduction, hazard tree management, forest restoration, prescribed fire), inappropriate livestock grazing, recreational activities, road construction and maintenance, and development.
Management activities that could ameliorate these threats include (but are not limited to): Maintaining existing populations and suitable habitat within population areas; restoring historical habitat and establishing new populations in the lower Kern River Canyon; use of best management practices designed to reduce erosion and bank destruction; protection of riparian corridors and woody vegetation; fencing to exclude livestock from occupied riparian areas; establishing and enhancing connectivity between currently occupied populations and adjacent suitable habitat; and developing habitat management plans based on site-specific conditions for Kern Canyon slender salamander and relictual slender salamander habitat.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.
We are proposing to designate critical habitat in areas within the geographical area occupied by the Kern Canyon slender salamander and the relictual slender salamander at the time of listing. We also are proposing to designate specific areas outside the geographical area occupied by the Kern Canyon slender salamander and the relictual slender salamander because we have determined that those areas are essential for the conservation of the species. The currently occupied habitat for the Kern Canyon slender salamander and the relictual slender salamander is limited. Therefore, we identified suitable habitat within the estimated historical range of the Kern Canyon slender salamander and the relictual slender salamander that meets the definition of critical habitat and that is essential to provide for species redundancy into the foreseeable future.
Sources of data for these two species and their habitat requirements include the CNDDB, peer-reviewed articles on these species and/or related species, and communication with species experts.
For areas within the geographic areas occupied by the Kern Canyon slender salamander and the relictual slender salamander at the time of listing, we delineated critical habitat unit boundaries using the following criteria:
We determined occupied areas for each species by reviewing the CNDDB occurrence records for the species and peer-reviewed articles. Systematic surveys have not been carried out for both species, and no recent searches have been conducted for these species at some localities where these species were previously detected. As discussed above in Background, both species are
(1) We selected all suitable habitat (habitat that contained the physical or biological features) within a 300-ft (91-m) radius of an occurrence record. A 300-ft (91-m) radius was based on the riparian conservation areas in Sequoia National Forest outlined in the Land Management Plan for Sequoia National Forest (USFS 2019a, p. 16).
(2) We selected additional contiguous suitable habitat consisting of stream segments downstream of occurrence records and associated riparian areas within a 300-ft (91-m) radius that contain the physical or biological features to include dispersal areas and corridors of habitat connectivity for the two species.
(3) We then constrained the boundary of a critical habitat unit based on potential effects of physical barriers (for example, residential housing developments) that cause habitat fragmentation and prevent connectivity and dispersal opportunities, as we consider that individuals of either species would be unable or unlikely to pass such barriers.
We conclude that the occupied areas we are proposing for critical habitat provide for the conservation of both species because they are habitat that contain all of the physical or biological features for the extant occurrences that have been reported to CNDDB and that facilitate connectivity and dispersal opportunities within and among occurrences.
As previously stated, we also identified unoccupied areas for the Kern Canyon slender salamander and the relictual slender salamander. We have determined that in order to recover the Kern Canyon slender salamander, connecting corridors of suitable habitat need to be maintained between areas occupied by the species. Therefore, we identified two stream segments and riparian habitat associated with small streams in the Kern Canyon within the estimated range of the Kern Canyon slender salamander that provide corridors of suitable habitat (that contain the physical or biological features) between areas occupied by the species. For the unoccupied areas for the Kern Canyon slender salamander, we selected areas within 20 ft (6 m) of the center flowline of the two stream segments and north-facing riparian areas in the Kern Canyon within 20 ft (6 m) of the center flowline of the Kern River (the Kern Canyon slender salamander is currently only found on the south side of the Kern River). The Kern River is not considered critical habitat for the Kern Canyon slender salamander. We include these unoccupied areas as proposed critical habitat for the Kern Canyon slender salamander for the purpose of maintaining habitat connectivity between areas occupied by the species, which is essential to the conservation of the species. Habitat connectivity is necessary to maintain the redundancy of the species and reduce the chance that a catastrophic event would eliminate all populations in an area.
We have determined that in order to recover the relictual slender salamander, additional populations will need to be reestablished in areas historically occupied by the species and connecting corridors of suitable habitat will need to be maintained. Therefore, we identified areas outside the geographic area occupied by the relictual slender salamander at the time of proposed listing that were historically occupied by the relictual slender salamander. For the relictual slender salamander, we selected all suitable habitat (habitat that contained the physical or biological features) within a 300-ft (91-m) radius of the occurrence records that are presumed extirpated in the Kern Canyon. We selected additional contiguous suitable habitat consisting of stream segments downstream of the occurrence records and associated riparian areas within a 300-ft (91-m) radius of the streams to include areas for reestablishment and corridors of habitat connectivity. We then selected north-facing riparian areas in the Kern Canyon that contain the physical or biological features to include connecting corridors of suitable habitat between areas for reestablishment and areas occupied by the relictual slender salamander at the time of listing. The Kern River is not considered habitat for the relictual slender salamander. We include these unoccupied areas as proposed critical habitat for the relictual slender salamander for the purpose of reestablishing populations, which are essential to the conservation of the species since few extant populations remain. The addition of reestablished populations would increase the redundancy and representation of the species and reduce the chance that a catastrophic event would eliminate all populations.
We conclude that these unoccupied areas for the Kern Canyon slender salamander and the relictual slender salamander will contribute to the conservation of these species, and they contain the physical or biological features for the species.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Kern Canyon slender salamander and the relictual slender salamander. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (that is, currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species. We have also identified, and propose for designation as critical habitat, unoccupied areas that are essential for the conservation of the species.
Units are proposed for designation based on one or more of the physical or biological features being present to support the Kern Canyon slender salamander and the relictual slender
We are proposing to designate four units as critical habitat for the Kern Canyon slender salamander, for a total of approximately 2,051 ac (830 ha). The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Kern Canyon slender salamander. The areas we propose as critical habitat are: (1) Bodfish Creek, (2) Erskine Creek, (3) Kern Canyon Tributaries, and (4) Kern Canyon Tributaries and Connecting Creeks. Table 3 shows the proposed critical habitat units and the approximate area of each unit. Unit 3 overlaps with proposed critical habitat for the relictual slender salamander.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Kern Canyon slender salamander, below.
This unit encompasses 144 ac (58 ha) within Kern County to the south of the Isabella Lake reservoir. This unit stretches along Bodfish Creek, approximately from river mile 3.5 to 5.2 (5.6 kilometers [km] from the confluence of Bodfish Creek and the Kern River to 8.4 km from the confluence of Bodfish Creek and the Kern River). Habitat within this unit is largely undeveloped and unfragmented. The majority of habitat is federally owned by the USFS and BLM. A small area in the southern portion of this unit is within Sequoia National Forest. General land use activities on the Federal lands within this unit include forest management (for example, fuels reduction, hazard tree management, forest restoration, prescribed fire) and grazing. Smaller tracts of land in rural areas in the northern portion of this unit are owned by private entities and have a small amount of residential development and may be used for livestock grazing. Wildfire and climate change are the primary ongoing threats to habitat within this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, recreational development, residential development, and grazing. This unit contains extant occurrences of the species and encompasses aquatic features and riparian habitat that are at higher elevation and are not fragmented by roads. This unit includes all the physical or biological features. This unit is considered occupied.
This unit encompasses 441 ac (178 ha) within Kern County to the south of Isabella Lake, a census-designated place in the Kern Canyon south of the Isabella Lake reservoir. This unit stretches along Erskine Creek, approximately from river mile 2.8 to 7.2 (4.6 km from the confluence of Erskine Creek and the Kern River to 11.6 km from the confluence of Erskine Creek and the Kern River). This unit is in a rural area and is sparsely fragmented by single lane roads. The majority of habitat within this unit is owned by private entities, and the remainder of the habitat is federally owned by the BLM. The privately owned parcels within this unit contain some residential development, and general land-use activities may include livestock grazing. General land use activities on the Federal lands within the unit include forest management (for example, fuels reduction, hazard tree management, forest restoration, prescribed fire), roads, and recreational development. Wildfire and climate change are the primary ongoing threats to habitat within this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, roads, recreational development, residential development, and grazing. This unit includes all the physical or biological features. This unit is considered occupied.
This unit encompasses 1,409 ac (570 ha) within Kern County in Sequoia National Forest in the Kern Canyon.
This unit encompasses 57 ac (23 ha) within Kern County in the Kern Canyon and along segments of Bodfish Creek and Erskine Creek to the south of the Kern Canyon. This unit includes habitat along streams and small tributaries that feed into the Kern River and associated riparian habitat within a narrow area in the Kern Canyon. This unit also contains the segment of Bodfish Creek from the confluence of the creek and the Kern River to Bodfish Creek river mile 3.5 (5.6 km from the confluence of Bodfish Creek and the Kern River) and a narrow area of riparian habitat associated with the creek. This unit also contains the segment of Erskine Creek from the confluence of the creek with the Kern River to Erskine Creek river mile 2.8 (4.6 km from the confluence of Erskine Creek and the Kern River) and a narrow area of riparian habitat associated with the creek. The mainstem of the Kern River is not considered to be habitat for the Kern Canyon slender salamander within this unit. The majority of the land within this unit in the Kern Canyon is under Federal landownership (USFS and BLM). General land use activities on these Federal lands include forest management (for example, fuels reduction, hazard tree management, forest restoration, prescribed fire), grazing, highway maintenance, and recreational development. The segments of Bodfish Creek and Erskine Creek included in this unit pass through smaller tracts of land that are owned by private entities and contain residential and commercial development. Wildfire and climate change are the primary ongoing threats to habitat within this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, California State Route 178 and other roads, recreational development, residential development, and grazing. This unit includes the physical or biological features of aquatic habitat required by the species (seeps, springs, and streams; riparian habitat; and prey) as well as corridors of aquatic habitat that provide connectivity between patches of occupied habitat. This unit is considered unoccupied but is essential for the conservation of the species because it contains aquatic and riparian features that support connectivity between occupied habitat at lower elevations in the Kern Canyon and occupied habitat at higher elevations along Bodfish and Erskine Creeks.
We are proposing three units as critical habitat for the relictual slender salamander, for a total of approximately 2,685 ac (1,087 ha). The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the relictual slender salamander. The three areas we propose as critical habitat are: (1) Kern Canyon Tributaries, (2) Lucas Creek, and (3) Mill Creek. Table 4 shows the proposed critical habitat units and the approximate area of each unit. Unit 1 overlaps with proposed critical habitat for the Kern Canyon slender salamander.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the relictual slender salamander, below.
This unit encompasses 723 ac (293 ha) within Kern County in the Kern Canyon within Sequoia National Forest. This unit includes segments of small streams and associated riparian habitat on the south side of the Kern Canyon. The mainstem of the Kern River is not considered to be habitat for the relictual slender salamander within this unit. Some habitat within this unit is fragmented by a highway (California State Route 178), single-lane roads, and recreational development. The majority of habitat in this unit is federally owned by the USFS, and a small area of habitat is privately owned. General land use activities on Federal lands within this unit include forest management (for example, fuels reduction, hazard tree management), grazing, highway maintenance, and recreational development. Wildfire and climate change are the primary ongoing threats to habitat in this unit. This unit
This unit encompasses 763 ac (309 ha) within Kern County to the south of the Kern Canyon in Sequoia National Forest. This unit extends south from the Kern Canyon along Lucas Creek and two unnamed tributaries to Lucas Creek on Breckenridge Mountain. Land within this unit is largely undeveloped and only sparsely fragmented by single-lane roads, recreational development, and small parcels that contain residential development. Most of the habitat in this unit is federally owned by the USFS. General land use activities on Federal lands within the unit include forest management (for example, fuels reduction, timber harvest, hazard tree management, forest restoration, prescribed fire), grazing, road maintenance, and recreational development. Wildfire and climate change are the primary ongoing threats to the habitat in this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, roads, recreational development, residential development, and grazing. This unit includes all the physical or biological features. This unit is considered occupied.
This unit encompasses 1,199 ac (485 ha) within Kern County to the south of the Kern Canyon in Sequoia National Forest. This unit extends south from the Kern Canyon along Mill Creek and an unnamed tributary to Mill Creek on Breckenridge Mountain. Land within this unit is largely undeveloped and only sparsely fragmented by single-lane roads and some recreational development. The majority of habitat in this unit is federally owned by the USFS, and a small area of habitat is owned by private entities. General land use activities on Federal lands within this unit include forest management (for example, timber harvest, fuels reduction, hazard tree management, forest restoration, prescribed fire), grazing, road maintenance, and recreational development. Wildfire and climate change are the primary ongoing threats to the habitat in this unit. Physical or biological features in this unit may require special management considerations or practices to protect them from impacts associated with forest management, roads, recreational development, and grazing. This unit includes all the physical or biological features. This unit is considered occupied.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final rule revising the definition of destruction or adverse modification on February 11, 2016 (81 FR 7214). Although we also published a revised definition after that (84 FR 44976, August 27, 2019), the 2019 definition was subsequently vacated by the court in
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2) is documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (a) if the amount or extent
In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.
The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to: Construction or maintenance of roads, maintenance of recreation sites and trails, and land development that require clearing, digging, and/or otherwise altering suitable habitat. Clearing of vegetation and digging could remove vegetation, alter hydrology of seeps, springs, or streams, and remove rocks or woody debris, which would contribute to losses of shelter, prey, ability to thermoregulate, and conditions for a cool, moist microhabitat. Additionally, development, roads, and construction projects can fragment tracts of suitable habitat, and may inhibit dispersal of the Kern Canyon slender salamander and the relictual slender salamander between remaining areas of suitable habitat. Activities that are not expected to destroy or adversely modify critical habitat include alteration of flows within the Kern River, as faster moving parts of the river do not contain the physical or biological features that support the Kern Canyon slender salamander or the relictual slender salamander (see
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DoD lands with a completed INRMP are within the proposed critical habitat designation for either the Kern Canyon slender salamander or the relictual slender salamander.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016). We explain each decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable.
In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”
The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. Section 3(f) of E.O. 12866 identifies four criteria when a regulation is considered a “significant” rulemaking and requires additional analysis, review, and approval if met. The criteria relevant here is whether the designation of critical habitat may have an economic effect of greater than $100 million in any given year (section 3(f)(1)). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander is likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander (IEc 2022, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (that is, absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas will also jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental impacts above and beyond the impacts of listing the species. Therefore, the screening analysis focuses on areas of unoccupied critical habitat. If there are any unoccupied units in the proposed critical habitat designation, the screening analysis assesses whether any additional management or conservation efforts may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the Kern Canyon slender salamander and the relictual slender salamander; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander, first we identified, in the IEM dated March 1, 2022, probable incremental economic impacts associated with the following categories of activities: fuels management, recreation, utilities management, roads, and grazing. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. If we list these species, in areas where the Kern Canyon slender salamander or the relictual slender salamander is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect these species. Moreover, if we finalize the proposed critical habitat designations, our consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (that is, the difference between the jeopardy and adverse modification standards) for the Kern Canyon slender salamander's and the relictual slender salamander's critical habitat. Because the designation of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander is being proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would likely adversely affect the essential physical or biological features of occupied critical habitat are also likely to adversely affect the species itself. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.
The proposed critical habitat designation for the Kern Canyon slender salamander totals 2,051 ac (830 ha) in four units, one of which is unoccupied. The proposed critical habitat designation for the relictual slender salamander totals 2,685 ac (1,087 ha) in three units, one of which is unoccupied.
The screening analysis concluded that, for all occupied areas, the economic costs of critical habitat designations will most likely be limited
We are soliciting data and comments from the public on the DEA discussed above, as well as on all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of these species.
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security. However, if through the public comment period we receive information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation.
We have not identified any areas to consider for exclusion from critical habitat based on other relevant impacts because there are no HCPs or other management plans for the Kern Canyon slender salamander or the relictual slender salamander that may be impaired by designation of or exclusion from critical habitat, and the proposed designation does not include any Tribal lands or trust resources. However, during the development of a final designation, we will consider all information currently available or received during the public comment period that we determine indicates that there is a potential for the benefits of exclusion to outweigh the benefits of inclusion. If we evaluate information regarding a request for an exclusion and we do not exclude, we will fully describe our rationale for not excluding
In preparing this proposal, we have determined that no HCPs or other management plans for the Kern Canyon slender salamander or the relictual slender salamander currently exist that may be impaired by designation of or exclusion from critical habitat, and the proposed designation does not include any Tribal lands or trust resources or any lands for which designation would have any economic or national security impacts. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation and thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources.
During the development of a final designation, we will consider any additional information received through the public comment period regarding other relevant impacts to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2), our implementing regulations at 50 CFR 424.19, and the joint 2016 Policy.
We are required by E.O.s 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
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation would not have a significant economic impact on a substantial
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects when undertaking certain actions. Some utility infrastructure exists in the proposed designation for critical habitat, including communication sites in the Lower Kern River Canyon and on Breckenridge Mountain and transmission lines and an electrical subunit in the Lower Kern River Canyon within Sequoia National Forest. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule would significantly or uniquely affect small governments. The lands being proposed for critical habitat designation are owned by Kern County, BLM, and the U.S. Forest Service. None of these government entities fits the definition of “small governmental jurisdiction.” Therefore, a small government agency plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Kern Canyon slender salamander and the relictual slender salamander in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Kern Canyon slender salamander and the relictual slender salamander, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the Federal Government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require
In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that we do not need to prepare environmental analyses pursuant to 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), E.O. 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 have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the Kern Canyon slender salamander or the relictual slender salamander, so no Tribal lands would be affected by the proposed designation.
A complete list of references cited in this proposed rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Sacramento Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
Martha Williams, Director of the U.S. Fish and Wildlife Service, approved this action on September 14, 2022, for publication. On September 30, 2022, Martha Williams authorized the undersigned to sign the document electronically and submit it to the Office of the Federal Register for publication as an official document of the U.S. Fish and Wildlife Service.
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) * * *
(h) Kern Canyon slender salamander (
(1)
(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial activity, as set forth at § 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.
(2)
(i) Conduct activities as authorized by a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.
(iii) Take as set forth at § 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.
(v) Take if that take is incidental to an otherwise lawful activity and is caused by fuels management activities that:
(A) Are expected to have negligible impacts to the Kern Canyon slender salamander and its habitat, as long as the activities are conducted or authorized by the Federal agency with jurisdiction over the land where the activities occur. This exception includes fuels management activities developed by a Federal, State, county, or other entity to reduce the risk or severity of fire in Kern Canyon slender salamander habitat and to protect and maintain habitat that supports the species. These activities should be in accordance with established and recognized fuels management plans that include measures to minimize impacts to the species and its habitat.
(B) Occur on private lands where there is no Federal nexus. This exception applies to those situations, whether currently existing or that may develop in the future, where fuels management activities are essential to reduce the risk of catastrophic wildfire, and when such activities will be carried out in accordance with an established and recognized fuels or forest management plan that includes measures to minimize impacts to the species and its habitat.
4. Amend § 17.95 in paragraph (d) by adding entries for “Kern Canyon Slender Salamander (
(d)
Kern Canyon Slender Salamander (
(1) Critical habitat units are depicted for Kern County, California, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of the Kern Canyon slender salamander consist of the following components:
(i) Aquatic habitat consisting of seeps, springs, and streams.
(ii) Riparian habitat consisting of terrestrial areas adjacent to seeps, springs, and streams that contain:
(A) Sufficient refugia consisting of woody debris, leaf litter, and rocks with abundant interstitial spaces to facilitate safe resting, foraging, and movement;
(B) Suitable prey to allow for survival, growth, and reproduction; and
(C) Riparian vegetation that provides shade cover contributing to cool and moist surface conditions for maintaining homeostasis, foraging opportunities, and physical structure for predator avoidance.
(iii) Corridors of aquatic habitat or riparian habitat that provide connectivity between patches of occupied habitat to allow for movement of individuals.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF RULE].
(4) Data layers defining map units were created using the National Hydrography Dataset and California Natural Diversity Database occurrence records, and critical habitat units were then mapped using Universal Transverse Mercator Zone 11N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5) Index map follows:
(6) Unit 1: Bodfish Creek, Kern County, California.
(i) Unit 1 consists of 144 ac (58 ha) in Kern County, California. The majority of land (125 ac (50 ha)) is owned by the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM). A small portion of the southern part of the unit is within the boundaries of Sequoia National Forest.
(ii) Map of Unit 1 follows:
(7) Unit 2: Erskine Creek, Kern County, California.
(i) Unit 2 consists of 441 ac (178 ha) in Kern County, California, south of the Isabella Lake Reservoir. The majority of land (259 ac (105 ha)) is owned by private entities, and the remainder (182 ac (74 ha)) is owned by BLM.
(ii) Map of Unit 2 follows:
(8) Unit 3: Kern Canyon Tributaries, Kern County, California.
(i) Unit 3 consists of 1,409 ac (570 ha) in Kern County, California. Nearly all land in the unit (1,377 ac (557 ha)) is owned by USFS (in Sequoia National Forest) and BLM, and the remainder is owned by private entities. This unit includes land along the southern bank of the Kern River from river mile 45.6 to 64.2.
(ii) Map of Unit 3 follows:
(9) Unit 4: Kern Canyon Tributaries and Connecting Creeks, Kern County, California.
(i) Unit 4 consists of 57 acres (23 ha) in Kern County, California. In total, 25 ac (10 ha) is owned by USFS and BLM, and the remainder is owned by private entities. This unit includes segments of the Kern River, Bodfish Creek, and Erskine Creek.
(ii) Map of Unit 4 follows:
(1) Critical habitat units are depicted for Kern County, California, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of the relictual slender salamander consist of the following components:
(i) Aquatic habitat consisting of seeps, springs, and streams.
(ii) Riparian habitat consisting of terrestrial areas adjacent to seeps, springs, and streams that contain:
(A) Sufficient refugia consisting of woody debris, leaf litter, and rocks with abundant interstitial spaces to facilitate safe resting, foraging, and movement;
(B) Suitable prey to allow for survival, growth, and reproduction; and
(C) Riparian vegetation that provides shade cover contributing to cool and moist surface conditions for maintaining homeostasis, foraging opportunities, and physical structure for predator avoidance.
(iii) Corridors of aquatic habitat or riparian habitat that provide connectivity between patches of occupied habitat to allow for movement of individuals.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF RULE].
(4) Data layers defining map units were created using the National Hydrography Dataset and California Natural Diversity Database occurrence records, and critical habitat units were then mapped using Universal Transverse Mercator Zone 11N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5) Index map follows:
(6) Unit 1: Kern Canyon Tributaries, Kern County, California.
(i) Unit 1 consists of 723 ac (293 ha) in Kern County, California. Nearly all of the land (713 ac (289 ha)) is within the boundaries of Sequoia National Forest, and a small area is privately owned.
(ii) Map of Unit 1 follows:
(7) Unit 2: Lucas Creek, Kern County, California.
(i) Unit 2 consists of 763 ac (309 ha) in Kern County, California. Nearly all of the land (761 ac (308 ha)) is within the boundaries of Sequoia National Forest, and a small area is privately owned. This unit extends south from the lower Kern River Canyon along Lucas Creek and two unnamed tributaries to Lucas Creek on Breckenridge Mountain.
(ii) Map of Unit 2 follows:
(8) Unit 3: Mill Creek, Kern County, California.
(i) Unit 3 consists of 1,199 ac (485 ha) in Kern County, California. The majority of land (1,190 ac (481 ha)) is within the boundaries of Sequoia National Forest, and a small area is privately owned. This unit extends south from the lower Kern River Canyon along Mill Creek and an unnamed tributary to Mill Creek on Breckenridge Mountain.
(ii) Map of Unit 3 follows:
Office of the Secretary, Interior.
Proposed rule.
The Department of the Interior proposes to revise regulations to improve implementation of the Native American Graves Protection and Repatriation Act of 1990. These proposed regulations would clarify and improve upon the systematic process for the disposition and repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony. The proposed changes would provide a step-by-step roadmap for museums and Federal agencies to comply with requirements within specific timelines to facilitate the required disposition and repatriation. The proposed changes would describe the processes in accessible language with clear timelines and terms, reduce ambiguity, and improve efficiency in meeting the requirements. In addition, the proposed changes emphasize consultation in every step and defer to the customs, traditions, and Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.
Comments on the proposed rule must be received by 11:59 p.m. EDT on January 17, 2023.
You may submit written comments, identified by the Regulation Identifier Number (RIN) 1024-AE19, by any one of the following methods:
•
•
Melanie O'Brien, National NAGPRA Program, National Park Service, (202) 354-2201,
The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA or Act) (25 U.S.C. 3001
The Secretary of the Interior (Secretary) is responsible for implementation of the Act, including the issuance of regulations implementing and interpreting its provisions (25 U.S.C. 3011). The regulations are codified at 43 CFR part 10. The Department of the Interior (Department) published the initial rule to implement NAGPRA in 1995 at 60 FR 62134 (December 4, 1995). Subsequently, the Department published additional rules concerning:
• Civil penalties, at 68 FR 16354 (April 3, 2003);
• Future applicability, at 72 FR 13184 (March 21, 2007);
• Culturally unidentifiable human remains, at 75 FR 12378 (March 15, 2010);
• Technical amendments, at 78 FR 27078 (May 9, 2013);
• The definition of “Indian tribe,” at 79 FR 33482 (June 11, 2014); and
• Disposition of unclaimed cultural items, at 80 FR 68465 (November 5, 2015).
The Department also publishes annual adjustments to civil penalties for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
As part of the Department's regulatory review in accordance with the Regulatory Flexibility Act and E.O. 13563, the Department regularly seeks public input on how we may best achieve regulatory ends. Over the past 12 years, parties affected by the definitions and procedures established in 43 CFR part 10 have commented, in various forums, that some of the regulatory provisions should be amended to improve implementation of the Act.
The following paragraphs detail the degree of consultation, coordination, and collaboration in this review, and the nature of public comments that the Department received from lineal descendants, Indian Tribes, NHOs, Federal agencies, museums, national museum and scientific organizations, Indian Tribal historic preservation organizations, the Review Committee, and interested members of the public.
From March to July of 2011, the Department consulted with Indian Tribes, NHOs, the Review Committee, Federal agencies, and the public on full revisions to the regulations implementing the Act. This effort resulted from the Department's publication of a final rule for the disposition of culturally unidentifiable human remains in March of 2010 (75 FR 12378) which solicited comments on the final rule. Many of those comments requested broader changes to the entire regulatory process. In April 2012 (77 FR 12378), the Department published a proposed rule to revise the regulations for accuracy and consistency based on some of those comments. Additional comments on that proposed rule requested changes that went beyond the scope of accuracy and consistency.
Since 2012, the Department has heard repeatedly from Indian Tribes, NHOs, museums, and Federal agencies on the implementation of the Act through the regulations. From 2012 to 2019 at 21 meetings of the Review Committee, public commenters have highlighted concerns with the regulations or challenges in implementing its procedures. The Review Committee has heard frequently that the regulations themselves pose barriers to successful and expedient repatriation.
As a result of previous consultation, public comment, and input from the Review Committee, the Department developed a draft text of regulatory revisions and on July 8, 2021, provided Indian Tribes and NHOs with an invitation to consult on the draft text. Along with the draft text, the Department provided a summary of the 2011 consultation with Indian Tribes and NHOs and how the draft text was responsive to that input. The Department hosted consultation sessions with Indian Tribes on August 9, 13, and 16, 2021, and with NHOs on August 17, 2021. In addition, the Department accepted written input until September 30, 2021. In total, we received 71 individual comment letters, which when combined with oral comments from consultation sessions, yielded over 700 specific comments on sections of the draft text.
The Department reviewed each comment provided during consultation and in writing and, wherever possible, adjusted the proposed regulations to address them. In a separate document, the Department has provided a summary of each comment and specific detailed responses. An overview of the major comments received is provided here, and specific adjustments made to the proposed regulations in response to comments are noted throughout Part V. Section-by-Section Summary of Proposed Changes.
We received a total of 179 comments on the definitions in the draft text of “cultural affiliation” and “geographical affiliation” and on the section for establishing cultural affiliation. Some of these comments requested an alternative process be developed utilizing the Secretary and the Review Committee to facilitate repatriation of human remains currently labeled as “culturally unidentifiable.” These same comments requested we strike most of the section on cultural affiliation, citing to the language in the Act (25 U.S.C. 3003(d)(2)(C) and 3005(a)(4)). Most comments focused on clarifying that one type of information was sufficient for finding cultural affiliation, especially geographic information. Some comments requested prioritizing the list of information or giving more weight to certain lines of information. Several comments suggested adopting language from the California statute on deference to traditional Native American knowledge as expert opinion. We received many supportive comments on the addition of multiple cultural affiliations and closest cultural affiliation.
In response, the Department proposes to define a new term, “affiliation,” in the proposed regulations and to combine the process for identifying
See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part and D. Section 10.3 Cultural and Geographical affiliation.
We received a total of 115 comments on the term “consultation” and the related regulatory provisions. Nearly all comments appreciated the definition, but some comments suggested aligning it with definitions found in 36 CFR part 800, Executive Order 13175, or the U.N. Declaration on the Rights of Indigenous Peoples. Some comments requested the definition make clear consultation is more than a procedural step and that consultation must be a meaningful, responsive, and accountable process. Several comments questioned the requirement for Indian Tribes and NHOs to make written requests to consult.
In response, the Department proposes to define “consultation” to seek consensus and to require a record of consultation that explains, if applicable, why consensus or agreement could not be achieved. The requirement for a written request to consult (which can include email) is necessary to establish a required timeline for responding to a request.
See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part, Plan of Action in E. Section 10.4 General, and Require that Consultation Seek Consensus, in J. Section 10.9 Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony and K. Section 10.10 Repatriation of human remains and associated funerary objects.
We received more than 100 comments on the draft text for discoveries on Federal or Tribal lands. Most of the comments were directed at two issues—(1) notification or consultation with Indian Tribes or NHOs when a discovery occurs, and (2) the timelines for action by the appropriate official after a discovery. The comments recommended that the requirements of the existing regulations at § 10.4 be reinstated, specifically, immediate telephone notification and written confirmation by the person who makes the discovery. Many comments expressed concern over the draft text paragraph on evaluating the potential for an excavation.
In response, the Department proposes to require written documentation (which can include email but not text messages) of a discovery within 24 hours. The Department proposes additional timelines in this section to ensure adequate time for consultation, a plan of action, and securing, protecting, monitoring, or, if required, excavation of the discovery.
See Part V. Section-by-Section Summary of Proposed Changes, F. Section 10.5 Discovery.
We received 66 comments on the draft text on comprehensive agreements. The majority of comments requested plans of action be reinstated, and many comments remarked on the utility of a plan of action in responding to discoveries or excavations and promoting consultation and coordination between land managers and Indian Tribes. A few comments requested changes to provide for immediate reburial of human remains or cultural items without any procedural requirements that might delay a reburial. A few comments requested tribal preference be incorporated into both the plan of action and comprehensive agreements.
In response, the Department proposes to move the requirement for a plan of action in the existing regulations at § 10.5 to the beginning of the subpart, and provide the requirements, in three separate steps, for a required plan of action before a planned activity, including an excavation, or after a discovery.
See Part V. Section-by-Section Summary of Proposed Changes, E. Section 10.4 General and references in F. Section 10.5 Discovery and G. Section 10.6 Excavation.
We received a total of 68 comments on the term “control” as defined in the draft text. Many comments requested it be replaced with the statutory term “possession or control.” Other comments requested removing the use of “legal interest” from the definition, as the Act does not recognize a museum or Federal agency has a lawful interest in human remains or cultural items other than the “right of possession.” A few comments suggested museums and Federal agencies should be jointly and severally liable for compliance with NAGPRA's inventory, summary, and repatriation obligations. The same comments requested the removal of the new term “custody.”
In response, the Department proposes to define the term as “possession or control” as used in the Act. Further, the Department has added clarifications to address how the Act did not intend for this term to confer any legal rights upon a Federal agency or museum, but instead act as an element of applicability of the Act's repatriation provisions. The Department also proposes other regulatory revisions to require Federal agencies and museums to share information and increase efforts to complete inventories, summaries, and repatriation of human remains and cultural items under loan or repository agreements to other entities.
See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part, and I. Section 10.8 General.
We received 64 comments on the definitions of “funerary object,” “associated funerary object,” and “unassociated funerary object.” Many comments requested revisions to require consultation and include the authority of Indian Tribes and NHOs in the definition.
In response, the Department proposes to clarify long-standing confusion over the distinction between associated and unassociated funerary objects. For both associated and unassociated funerary objects, broad categorical identifications, including everything from a burial site or specific area, may meet these definitions depending on the information available and the results of consultation.
See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part.
We received 55 comments on the draft text carrying out the provision of the Act if human remains or cultural items are indispensable for completion of a specific scientific study the outcome of which would be of major benefit to the United States (25 U.S.C. 3005(b)). Half of the comments recommended the provisions should only apply to human
In response, the Department has clarified some of the provisions, but has retained the provisions applying to both human remains and cultural items as in the Act (25 U.S.C. 3005(b)). The recommendation that this provision apply retroactively runs counter to the prospective applicability of the Act and would conflict with the Act.
See Part V. Section-by-Section Summary of Proposed Changes, J. Section 10.9 Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony, and K. Section 10.10 Repatriation of human remains and associated funerary objects.
We received 54 comments on the provision in the draft text requiring that museums and Federal agencies prepare and submit a summary of unassociated funerary objects, sacred objects, and objects of cultural patrimony in its holding or collection. Comments pointed out that the summary is prepared before consultation and that Indian Tribes and NHOs are the best parties to determine whether any item in a holding or collection fits a NAGPRA category. Museums and Federal agencies could potentially use the draft text requirement to evade preparing a summary, claiming that they do not have such objects when they might.
In response, the Department proposes to retain language from the existing regulations in both the opening paragraph to the section and in the paragraph on completing a summary.
See Part V. Section-by-Section Summary of Proposed Changes, J. Section 10.9 Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony.
We received 51 comments on the new terms to replace “aboriginal land” and “aboriginal occupation.” Several comments appreciated the new definition of “acknowledged aboriginal land” and some comments recommended that “acknowledged aboriginal land” be used not just in Subpart C of the regulations, but also in Subpart B, either combined with the definition of “adjudicated aboriginal land,” or instead of that definition. Some comments suggested further clarifying language, including addition of other sources or changes to the listed sources. For “acknowledged aboriginal land,” many comments suggested changing the first source, “treaty sent by the President to the United States Senate for ratification,” to an earlier stage in the treaty-making process, while another comment suggested that it be deleted, since only a ratified treaty is final and authoritative.
In response, the Department proposes to add definitions of “adjudicated aboriginal land” and “acknowledged aboriginal land” to distinguish the criteria for a determination of “aboriginal land” under Subpart B and the Act (25 U.S.C. 3002(a)), on the one hand, and under Subpart C on the other. The Department proposes to include intertribal treaties, diplomatic agreements, and bilateral accords between and among Indian Tribes. In the Act, Congress defined “the aboriginal land of some Indian tribe” as “Federal land that is recognized by a final judgement of the Indian Claims Commission or the United States Court of Claims,” and we have used that to define “adjudicated aboriginal land.” The Department can neither add to this definition nor ignore it, so the comments requesting a change to the application or definition of adjudicated aboriginal land cannot be adopted.
See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part.
We received 39 comments on the definition for “Federal lands.” Several comments requested the addition of specific language to provide for protection and disposition of Native American children buried at Indian boarding schools, especially in circumstances where the land is not or was not owned or controlled by the U.S. Government, but the Indian boarding school was operated by or for the U.S. Government. Some comments asserted that the intentional excavation provisions of NAGPRA (25 U.S.C. 3002(c)) could be used to authorize the disinterment of Native children from these cemeteries on Federal or Tribal lands, and suggested that, for this purpose, the Department expand the statutory definition of “Federal lands” in the regulations to include any former Indian boarding school where any amount of Federal funding, government certifications, or permissions were granted, regardless of the current ownership of land.
In response, as discussed in the Secretarial Memorandum establishing the Federal Indian Boarding School Initiative, the Department is committed to “address[ing] the intergenerational impact of Indian Boarding Schools to shed light on the traumas of the past.” The Memorandum identifies the NAGPRA process as a possible method for repatriation of some Native American children. While NAGPRA does not require a Federal agency to engage in an intentional excavation of possible burial sites, (
Unfortunately, the Department cannot, however, amend the regulatory definition of “Federal lands” as the comments requested. Congress specifically and explicitly defined Federal lands based on ownership or control, not on receipt of Federal funds (as it did in the definition of a “museum”). Thus, “[w]e have here an instance where the Congress, presumably after due consideration, has indicated by plain language a preference to pursue its stated goals . . . . In such case, neither [a] court nor the agency is
Beginning in July 2021, the Department requested direct input from the Review Committee on the draft regulatory text prepared for consultation. The Review Committee held 14 meetings with over 50 hours of meeting time devoted to discussion of and development of written recommendations on the draft regulatory text. The Review Committee submitted a written recommendations to the Secretary of the Interior on March 14, 2022, and June 7, 2022. The Department reviewed these written recommendations, along with the minutes and transcripts from the related public meetings, in preparing the proposed regulations. The major comments received related to the Introductory section (see proposed 10.1) and the inventory update requirements in Subpart C—Repatriation of human remains or cultural items by museums or Federal agencies (see proposed 10.10(d) and (e)). Additional recommendations by individual members of the Review Committee were also submitted. The Department, wherever possible, adjusted the proposed regulations to address the Review Committee recommendations.
The proposed revisions to these regulations would streamline requirements, clarify timelines and terms, reduce ambiguity, and improve efficiency in the systematic process for the disposition and repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony under the Act. The revisions being proposed today are intended to make the regulations more user-friendly and would:
• Reduce the number of sections and remove duplicative language. Existing requirements are condensed into a clear, easy to follow, step-by-step process.
• Correct inaccuracies and ambiguities in the existing regulations by using consistent language and clearly defined terms.
• Create a consistent writing style with clear, concise headings that describe each specific regulatory step.
• Clarify when actions are required by lineal descendants, Indian Tribes, Native Hawaiian organizations, museums, and Federal agencies by using specific timelines and deadlines.
• Provide clear instructions to Indian Tribes, NHOs, museums, and Federal agencies for establishing cultural and geographical affiliation and resolving competing claims or requests.
The proposed changes in Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands would:
• Replace the requirement for Federal agencies to publish two notices in a newspaper of general circulation for human remains or cultural items removed from Federal lands with a requirement for Federal agencies to submit one notice to the Manager, National NAGPRA Program, for publication in the
• Require certain actions be taken by Indian Tribes, NHOs, and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for discoveries or excavations on Tribal lands, including responding to a discovery, certifying that an activity may resume, authorizing an excavation, and documenting in writing the disposition of human remains or cultural items.
• Require Federal agencies and DHHL on Federal lands in the United States and Tribal lands in Hawai`i to develop a plan of action or comprehensive agreement, in consultation with lineal descendants, Indian Tribes, and NHOs, that includes instructions for protecting, stabilizing, or covering human remains or cultural items in situ, if appropriate.
• Clarify that the jurisdiction of a Federal agency to issue a permit under Section 4 of the Archaeological Resources Protection Act (ARPA) for an excavation is no broader than it is under ARPA.
The proposed changes in Subpart C—Museum or Federal Agency Holdings or Collections would:
• Remove the term “culturally unidentifiable” (
• Require repatriation of associated funerary objects together with human remains to an Indian Tribe or NHO with cultural or geographical affiliation.
• Require updated inventories for human remains and associated funerary objects previously included in an inventory but not published in a notice of inventory completion. For the updated inventory, the proposed regulations would require a museum or Federal agency to initiate consultation, consult with requesting parties, and determine if there is a known lineal descendant or a connection between the human remains and associated funerary objects and Indian Tribes or NHOs with cultural or geographical affiliation.
• Require museums and Federal agencies to submit a notice of inventory completion within 6 months of completing or updating an inventory of human remains and associated funerary objects with a known lineal descendant or a connection to an Indian Tribe or NHO with cultural or geographical affiliation.
• Require museums and Federal agencies to send repatriation statements to the National NAGPRA Program. In the existing regulations, museums and Federal agencies are not required to report on any actions that occur after the publication of a notice. The proposed regulations would require both Federal agencies and museums to provide the Manager, National NAGPRA Program, with a copy of the written statement completing the repatriation, as recommended by the Government Accountability Office in a 2010 report on the implementation of the Act.
• Require museums to submit a statement describing holdings or collections in its custody to the responsible Federal agency, if known, and to the Manager, National NAGPRA Program. If a museum cannot identify a person, institution, state or local agency, or Federal agency that likely has possession or control of the holding or collection, it must submit a statement to the Manager, National NAGPRA Program. In the existing regulations, museums have no requirement to report on Federal holdings or collections. The proposed changes would align with the Department's response to the Government Accountability Office's 2010 report on the implementation of the Act.
Table 1 shows how the Department proposes to reorganize the existing regulatory requirements and summarizes the proposed changes.
NAGPRA, 25 U.S.C. 3001
This section of the proposed rule would reorganize for readability and restate in plain language the purpose and general requirements found in the existing regulations. In response to
In the applicability paragraph (see proposed § 10.1(b)), the Department proposes a revision to clarify that these regulations pertain to Native American human remains or cultural items and require certain actions for their protection in the event of a discovery or excavation on Federal or Tribal lands after November 16, 1990, and for their repatriation if in the possession or control of a museum or Federal agency. The Act does not provide express authority for applying the discovery and excavation provisions to land that does not meet the definition of Federal or Tribal lands (25 U.S.C. 3002). However, depending on other relevant state or local laws, human remains or cultural items discovered or excavated from private or state lands may be subject to the repatriation provisions under Subpart C.
To further clarify the applicability of these regulations, the Department proposes to remove the existing paragraph § 10.1(b)(2) to correct the misconception that human remains or cultural items must, themselves, be indigenous to Alaska, Hawai`i, and the continental United States. Under the Act, “indigenous” relates to the definition of “Native American.” Human remains or cultural items are “Native American” based on a relationship to a tribe, people, or culture that is indigenous to the United States.
In response to consultation with Indian Tribes and NHOs, the Department proposes new regulatory provisions to address accountability by museums and Federal agencies and to require a duty of care for human remains and cultural items (see proposed § 10.1(c) and (d), respectively). The paragraph on duty of care was drawn from language in the existing regulations at § 10.7(2) and (3) which includes a requirement for Federal agencies to consider and respect the traditions of potential claimants (
• seek consensus during consultation,
• provide appropriate treatment, care, or handling of human remains or cultural items, and
• incorporate identifications, recommendations, and Native American traditional knowledge (see definition below) in making determinations.
Proposed § 10.1(e) would: (1) consolidate and clarify those requirements governing the delivery of written documents that are currently dispersed throughout the existing regulations; and (2) provide for delivery of written documents by email with proof of receipt, and explicitly exclude delivery of written documents by text message or social media message.
Proposed § 10.1(f) would describe how deadlines and timelines for written documents are calculated based on business days,
The Department also proposes to relocate to this Introduction section existing regulatory provisions regarding (1) failure to make a claim or a request (see proposed § 10.1(g)), (2) judicial jurisdiction (see proposed § 10.1(h)), and (3) final agency action (see proposed § 10.1(i)). Regarding final agency action, “a final determination making the Act or this part inapplicable” is intended to be construed broadly across the regulatory process, including some circumstances where a Federal agency's failure to comply with a regulatory requirement or deadline may demonstrate its determination that either the Act or this part is inapplicable. Regarding judicial jurisdiction (25 U.S.C. 3009(3)) nothing in the Act or these regulations is intended to abrogate any concurrent Tribal jurisdiction that may exist with respect to alleged violations of similar Tribal laws on Tribal lands.
Table 2 shows how the Department proposes to reorganize the existing regulatory requirements.
This section of the proposed rule defines terms used throughout this part. The Department proposes to reorganize defined terms in alphabetical order and remove the paragraph designations in the existing regulations at § 10.2 in conformance with the
The Department does not propose any substantive changes to the following 10 definitions: Act, discovery (replaces “inadvertent discovery”), excavation (replaces “intentional excavation”), Federal agency, Manager, National NAGPRA Program, museum, person, Review Committee, Secretary, and summary. The Department proposes to remove the following seven definitions that are no longer used in the proposed regulations: burial site, cultural affiliation (see affiliation), culturally unidentifiable, Federal agency official, Indian Tribe official, museum official, and Native Hawaiian (see Native Hawaiian organization).
Table 3 shows how the Department proposes to add, replace, or revise terms for consistency, to reduce ambiguities, and to clarify requirements throughout this part. Except as noted in the table, all terms are explained in the immediate section below.
The Department proposes to add two new terms to replace “aboriginal lands” and “aboriginal occupation,” which are not defined but are used in the existing regulations §§ 10.6 and 10.11. The new terms, “acknowledged aboriginal land” and “adjudicated aboriginal land,” would contain the same requirements for “aboriginal lands” and “aboriginal occupation,” found in the existing regulations at §§ 10.6(a)(2)(iii)(A) and 10.11(b)(2)(ii) and (c)(1)(ii), but the new definitions would distinguish and clarify how to apply the terms.
For “acknowledged aboriginal land,” the definition would elaborate on which treaties may be used to identify aboriginal land and would add other Federal, foreign, or intertribal government documents to the list of acceptable sources. Some examples of other Federal documents that provide information on aboriginal occupation by an Indian Tribe are “Report to the President by the Indian Peace Commission, 1868,” “Annual Reports of the Commissioner on Indian Affairs,” and “Alaska Natives and the Land” (by the Federal Field Committee for Development Planning in Alaska, October 1968). A source for identifying intertribal treaties, diplomatic agreements, and bilateral accords is David H. DeJong's book “American Indian Treaties,” which identifies 63 intertribal treaties, dating between 1666 and 1903. The Department has intentionally declined to require that intertribal treaties, diplomatic agreements, or bilateral accords be in writing in recognition of traditional forms of documentation, such as two-row wampum belts.
For “adjudicated aboriginal land,” the definition is drawn from the Act (25 U.S.C. 3002(a)(2)(C)) and clarified, based on Sections 15 and 22 of the Indian Claims Commission Act of 1946 (Pub. L. 79-726, 60 Stat. 1049), that a final judgment also includes a judgment concerning a settlement (compromise of claim) if that judgment or settlement either explicitly recognizes certain land
The Department proposes a new term, “affiliation,” and to remove the existing definitions of “cultural affiliation” and “culturally unidentifiable.” This change reflects Congressional intent and focus on affiliation for the sole purpose of disposition or repatriation. In defining affiliation, Congress “intended to ensure that the claimant has a reasonable connection with the materials” (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). Identifying “cultural affiliation” has been a significant barrier to disposition and repatriation under the Act, despite the clear intent of Congress that it be used for no other purpose than to ensure a reasonable connection between the human remains and cultural items and an Indian Tribe or NHO. Defining “affiliation” in these regulations without the qualifier of “cultural” better aligns with Congressional intent, and addresses concerns raised during consultation with Indian Tribes and NHOs about implementing the term “geographical affiliation” separately from cultural affiliation. In response to consultation with Indian Tribes and NHOs, we have combined cultural and geographical affiliation into this definition and the section on affiliation. The definition of “cultural affiliation” from the Act and the existing regulations, the lines of information, and the use of geographic relationships consistent with the existing regulation are all incorporated into the regulatory process by which “affiliation” is established in the proposed text at § 10.3.
The Department proposes to add a new term, “ahupua`a,” to use when determining the Native Hawaiian organization with the closest affiliation to human remains or cultural items. While the term serves a geographic purpose, identifying a traditional land division, an ahupua`a may also be associated with various traditional and customary practices in addition to habitation and provides important cultural connections between its earlier occupants or traditional users and Native Hawaiian organizations. Traditionally, the occupants of an ahupua`a are its primary stewards.
The Department proposes to add a new term, “consultation,” using language provided by Congress (H. Rep. 101-877, at 16). In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus and incorporate identifications, recommendations, and Native American traditional knowledge, to the maximum extent possible.
In response to consultation with Indian Tribes and NHOs, the Department proposes to add a new term, “cultural item,” and specifically exclude human remains from that definition. Although Congress included human remains in defining cultural items (25 U.S.C. 3001(3)), the Department proposes throughout these regulations to use the phrase “human remains or cultural items” rather than “cultural items.” This edit is responsive to requests from some Indian Tribes and NHOs who oppose any language that identifies people as items since this can be seen as objectifying and dehumanizing. This edit does not have any impact on the applicability or scope of these regulations.
In response to consultation with Indian Tribes and NHOs, the Department proposes to add to the definition of cultural items (and to subsequent specific definitions of cultural items) that identification of cultural items is according to a lineal descendant, Indian Tribe, or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of cultural items is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of cultural items, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how a lineal descendant, Indian Tribe, or NHO shares the information needed to identify a cultural item.
The Act was enacted for the benefit of Indians, therefore the canons of construction for Indian law applies. The Act and these regulations “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit” (
The Department proposes to add a new term, “custody,” that would indicate an obligation for human remains or cultural items that is less than “possession or control.” See discussion of “possession or control” below. This newly defined term does not have the same meaning as the general meaning given to the same word used throughout the existing regulations, especially at § 10.6.
The Department proposes to replace the term “disposition” in the existing regulations at § 10.2(g)(5) with two separate terms: “disposition” and “repatriation.” In the proposed revision, “disposition” applies only to Subpart B. The proposed revision to “disposition” would denote that an Indian Tribe, NHO, Federal agency, or DHHL acknowledges and recognizes that a lineal descendant, Indian Tribe, or NHO has control or ownership of human remains or cultural items removed from Federal or Tribal lands. Although the phrase, control or ownership, is not defined in the Act or the proposed regulations, it is used to refer to the rights of lineal descendants, Indian Tribes, and NHOs in Native American human remains or cultural items as acknowledged and recognized by the Act. The phrase, control or ownership, is used to differentiate “disposition” and “repatriation” from terms used in other sections of the Act, such as the “right of possession,” which a museum or Federal agency may use to assert its lawful control or ownership, or “possession or control,” which is an element of applicability under the Act that itself does not determine control or ownership or a right of possession. In describing disposition, the Act uses the terms “ownership,” “control,” “right of control,” and “title to” (25 U.S.C. 3002). Of these terms, the phrase, control or ownership, is the most appropriate to apply to human remains as well as cultural items that may be subject to
The Department proposes to revise the term “Federal land” to clarify the lands on which Federal programs or activities may be subject to the Act. As in the existing regulations, “Federal land” includes lands not just owned by the United States Government, but also lands under its control. (Note that the general term “control” as used in this discussion of Federal land is not the same as the defined term “possession or control” as used in the Act). Whether Federal control of the lands on which it conducts its programs or activities is sufficient to apply these regulations depends on the circumstances and scope of the Federal agency's authority, and on the nature of State and local jurisdiction. Because of the wide array of agency-specific authorities that can establish federally controlled lands, the Federal agency officials must make such determinations on a case-by-case basis and, in doing so, should consult with their legal counsel.
While Federal agency officials must ultimately make their own determinations as to the lands under the control of their agency, the drafters note that, in general, a Federal agency will only have sufficient legal interest to “control” lands it does not own when it has sufficient statutory jurisdiction with respect to those lands or other form of property interest in the land, such as a lease, easement, or other agreement with terms that have indicia of control.
On the other hand, the drafters note that Federal agency participation in a regulatory or supervisory capacity does not necessarily rise to the level of Federal “control.”
Indian lands outside reservation boundaries that are held in trust by the United States Government or are held by an Indian landowner subject to restrictions on alienation imposed by the United States Government, such as allotments, are subject to Federal control and are treated as Federal lands under these regulations. The control of the United States Government over Indian land is the same whether it is in trust or restricted status and whether it is within the exterior boundaries of a reservation or not.
The Department proposes to revise the term “funerary object” and align it with the definitions in the Act for “associated funerary object” and “unassociated funerary object.” The portion of the statutory definition that is the same between the two terms has been used to define “funerary object.” As defined in the Act, the only difference between the definition for associated and unassociated funerary objects is the location of the related human remains. A single object may be a funerary object if the object is identified as having been placed with or near human remains. Therefore, determining if the funerary object is associated or unassociated does not require identifying the specific individual with which the object was placed, but rather, only requires identifying the location of the related human remains.
For example, an authorized excavation in 1940 removed a Native American object from what was thought to be a village site dating between 2000 BCE to 500 CE. The object dates to the late pre-contact period, likely between 1500-1580 CE, based on materials and form. Fragmentary human remains were identified during the excavation and noted in field notes, but no human remains were removed. Based on information available including the results of consultation, it is reasonable to believe the object was placed intentionally in this location because of the human remains, but it is also reasonable to believe the object was placed there many centuries after the human remains. Nevertheless, the object meets the definition of a funerary object since it was intentionally placed near human remains.
The funerary object does not, however, meet the definition of an associated funerary object. Human remains were identified, but no human remains were removed during the excavation. In the information available, there is no record of human remains being removed from the site at any other time. Through consultation with Indian Tribes, the funerary object was not identified as being the kind of object made exclusively for burial purposes or to contain human remains.
When a funerary object is not an associated funerary object, it may be an unassociated funerary object if it meets one or more of the criteria in the definition (see proposed § 10.2 Funerary object (2)). The funerary object is not related to specific individuals or families (see proposed § 10.2 Funerary object (2)(ii)). The funerary object was not removed from a specific burial site or an area known to be a burial site (see proposed § 10.2 Funerary object (2)(iii) and (iv)). However, the funerary object is related to known human remains (identified in the field notes), but those human remains were not removed from the site (see proposed § 10.2 Funerary object (2)(i)). Therefore, the funerary object meets the definition of an unassociated funerary object.
In response to consultation with Indian Tribes and NHOs, the Department proposes to add to the definition of funerary object (and to all specific definitions of cultural items) that identification of a funerary object is according to a lineal descendant, Indian Tribe, or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of a funerary object is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of a funerary object, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how a lineal descendant, Indian Tribe, or NHO shares the information needed to identify a funerary object.
The Department proposes to add a new term “holding or collection” which is not defined in the Act. The proposed definition is drawn from dictionary definitions as well as the International Council of Museums' 2007 definition. Merriam-Webster Dictionary defines “collection” as “something collected; especially: an accumulation of objects gathered for study, comparison, or exhibition . . .” and defines “holding” as “any property that is owned or possessed . . .” The International Council of Museums' 2007 definition of a museum is an institution “which acquires, conserves, researches, communicates and exhibits . . . for the purposes of education, study, and enjoyment.” Additional purposes in this definition are taken from Unit 34 of “Museum Basics” (1993) by Timothy Ambrose, which lists different types of museum collections. In response to consultation with Indian Tribes and NHOs, we have refrained from using offensive purposes listed in some of these sources such as “enjoyment” or “personal benefit.” While the proposed definition includes a wide variety of purposes, a holding or collection under this proposed rule would not be limited to only these purposes.
The Department proposes to revise the term “human remains” to clarify what is and what is not considered human remains for purposes of disposition and repatriation. The proposed revision is based on the explanation provided in the preamble to the 1995 final rule (60 FR 62137, December 4, 1995). The explanation noted that the Act makes no distinction between fully articulated burials and isolated bones and teeth. The preamble then stated that the final rule added language excluding “naturally shed” human remains from consideration under the Act. The preamble clarified that this exclusion does not include human remains for which there is evidence of purposeful disposal or deposition. The preamble then addressed a question asked by a commenter who sought clarification on the status of human remains that were not freely given but had been incorporated into objects that are not cultural items as defined in the regulations. The preamble explained that the legislative history does not address this question and therefore the proper disposition of such human remains must be determined on a case-by-case basis.
Consistent with the advice in 1995, identification of human remains must be made on a case-by-case basis. The Act requires identification of all human remains in a holding or collection, including human remains reasonably believed to be comingled with other material (such as soil or faunal remains). During consultation with lineal descendants, Indian Tribes, and NHOs, museums and Federal agencies should evaluate if an entire admixture can be treated as human remains. If such a request is made during consultation, but it is not possible to treat the admixture as human remains, the record of consultation should include the effort to identify a mutually agreeable alternative. The proposed definition provides two ways human remains may be incorporated into an object or item. For example, depending on the results of consultation, a scalp shirt with human remains or a flute made with human remains that is not a funerary object, a sacred object, or an object of cultural patrimony would be considered human remains and subject to disposition or repatriation under the Act and the proposed regulations. Human remains that are incorporated into a funerary object, sacred object, or object of cultural patrimony would not be treated as human remains, but as a cultural item and subject to disposition or repatriation under the Act and the proposed regulations.
The Department proposes to add a definition for the term “Indian Tribe,” currently reserved in the existing regulations at § 10.2(b)(2). The list of federally recognized Indian Tribes is the list of Indian Tribes for the purposes of NAGPRA. Throughout the proposed rule, the term is used in the singular form, but it is expected that multiple Indian Tribes may meet the criteria under this part for disposition or repatriation of the same human remains or cultural items. Any Indian Tribe with cultural or geographical affiliation may submit a claim for disposition or a request for repatriation. Two or more Indian Tribes may agree to joint disposition or joint repatriation of human remains or cultural items. Claims or requests for joint disposition or joint repatriation should be considered a single claim or request and not competing claims or requests.
The Department proposes to revise the term “inventory” to accurately reflect the content as required by the Act. In response to consultation with Indian Tribes and NHOs, the Department is aware that the existing regulatory definition has been a barrier to expeditious repatriation as it requires an “item-by-item description.” In the Act, an inventory is defined as a “simple itemized list.” The proposed revision to the definition uses the exact language from the Act and includes the information required to be included in an inventory.
The Department proposes to revise the definition and remove the criteria for determining lineal descent in the existing regulations at §§ 10.2(b)(2) and 10.14(b). The term “lineal descendant” is not defined in the Act. The revised definition would allow for disposition or repatriation of human remains and associated funerary objects to a “lineal descendant” in the following cases:
• The identity of a particular deceased individual is known, and a specific living person is known to be the direct descendant of the deceased individual. For example, the human remains are of the great-great-grandfather of the living great-great-granddaughter.
• The identity of each deceased individual in a group of human remains is not known, but a specific living person is known to be the direct descendant of all the deceased individuals in the group. For example, all that is known is that the human remains of multiple individuals are the great-great-grandfather, great-grandfather, father, and maternal uncle of a specific living person, who is the direct descendant of them all under a traditional system of descent.
Throughout the proposed rule, the term is used in the singular form, but it is expected that multiple lineal descendants may meet the criteria under this part for disposition or repatriation of the same human remains, funerary
The Department proposes a slight addition to the term “museum” to clarify that, consistent with the Act, the term does not include the Smithsonian Institution. Also consistent with the Act, the term “museum” includes State or local government agencies, including subdivisions of State or local government agencies. Consequently, any of the following examples may be a museum under the Act and the proposed regulations if they meet all the criteria of the definition: a county coroner's office, a city medical examiner's office, a State police department or local post, a city library, or a city water authority.
The Department proposes to revise and clarify the existing definition of “Native American.” The Act applies to human remains or cultural items that meet the definition of “Native American.” “Native American” human remains or cultural items are not only items of a tribe, people, or culture that is indigenous to the United States, but are also items that are related to such tribe, people, or culture. Because Congress did not define “tribe,” “people,” or “culture,” the proposed definition of the term “Native American” incorporates statutory and dictionary definitions to better clarify these terms.
The Department proposes to add a new term, “Native American traditional knowledge,” for use in the definition of “consultation” and “cultural item” as well as definitions of specific kinds of cultural items. In response to consultation with Indian Tribes and NHOs, this definition is a variation on what was suggested by a specific Indian Tribe, but this term is rooted in the larger concept of indigenous ways of knowing. The proposed definition attempts to cover the wide variety of terminology related to this concept while remaining consistent with the disposition and repatriation process under the Act. The Department recognizes that there is different terminology used by and among Native American people that incorporates this concept. Additionally, the concept of traditional knowledge is recognized by a number of Federal agencies in the context of land management activities and the use of natural or cultural resources. In these contexts, it is often referred to as traditional ecological knowledge or TEK. It may also be referred to as indigenous knowledge or traditional cultural knowledge. For the limited purposes of these regulations, the term “Native American traditional knowledge” is inclusive of all these terms and may provide information needed to identify affiliation (either cultural or geographical), funerary objects, lineal descendants, objects of cultural patrimony, and sacred objects. We welcome additional input on the specifics in this definition as well as its use in the regulatory text.
The Department proposes to revise the term “Native Hawaiian organization” (NHO) by incorporating the definition of “Native Hawaiian” from the Act. While the Act uses the phrase “aboriginal people” to define Native Hawaiian, the proposed regulations use the phrase “indigenous people” to better relate to the definition of Native American and distinguish from the use of aboriginal elsewhere in the Act and regulations referring to land. The proposed definition would include those entities that the Secretary, through the Office of Native Hawaiian Relations, has identified on the most current Native Hawaiian Organization Notification List. The Department also proposes to include in the definition of NHO the Hawaiian Homes Commission Act (HHCA) Beneficiary Associations and Homestead Associations. Although the Act names Hui Malama I Na Kupuna O Hawai`i Nei as a Native Hawaiian organization, that group ceased to exist in 2015, so the proposed definition does not include it.
Throughout the proposed rule, “Native Hawaiian organization” is used in the singular form, but it is expected that multiple NHOs may meet the criteria under this part for disposition or repatriation of the same human remains or cultural items. Any NHO with affiliation may submit a claim for disposition or a request for repatriation under the proposed rule. Two or more NHOs may agree to joint disposition or joint repatriation of human remains or cultural items. Claims or requests for joint disposition or joint repatriation would be considered a single request and not competing claims or requests.
The Department proposes to revise the definition of “object of cultural patrimony” to clarify what a Native American group or culture is for purposes of the definition. In response to consultation with Indian Tribes and NHOs and a specific suggestion from an Indian Tribe, the Department also proposes to add a sentence to recognize that a caretaker may have been entrusted with responsibility for an object and may have even conferred that responsibility on another caretaker, but the object can still be an object of cultural patrimony. In response to consultation with Indian Tribes and NHOs, the Department proposes to add to the definition (and to all specific definitions of cultural items) that identification of an object of cultural patrimony is according to an Indian Tribe or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of an object of cultural patrimony is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of an object of cultural patrimony, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how an Indian Tribe or NHO shares the information needed to identify an object of cultural patrimony.
To emphasize the importance of the familial or kinship relationship in Hawai`i, the Department proposes to add a new term “ `ohana,” used in the definition of “Native Hawaiian organization” and in determining the NHO with the closest affiliation.
In response to consultation with Indian Tribes and NHOs, the Department proposes to replace the two separate terms in the existing regulations “possession” and “control” into one term, as used in the Act, “possession or control.” Congress used these two words as a single term throughout the Act except for “right of possession” (discussed later). The phrase “possession or control” as used in the Act connotes a singular interest in human remains or cultural items and utilizes the two elements of the phrase only to address the physical location of the human remains or cultural items. In the Act, having possession or control means a museum or Federal agency may
The Department also proposes to define a separate term, “custody,” that would indicate an obligation that is less than “possession or control.” Whether a Federal agency or museum has a sufficient interest in human remains or cultural items to establish possession or control is a legal determination that must be made on a case-by-case basis. However, when a museum with custody of human remains or cultural items cannot identify any person, institution, State or local government agency, or Federal agency with possession or control, the museum should presume it has possession or control for purposes of repatriation under the Act. When a Federal agency cannot determine if human remains or cultural items came into its possession or control before or after November 16, 1990, or cannot identify the type of land the human remains or cultural items were removed from, the Federal agency should presume it has possession or control for purposes of repatriation under the Act. This determination alone does not create any legal rights or indicate that a museum or Federal agency has a “right of possession” to human remains or cultural items; it is merely a jurisdictional requirement for application of the Act to human remains or cultural items subject to repatriation by the appropriate museum or Federal agency.
The Department received several comments through consultation with Indian Tribes and NHOs requesting that it expand the scope of the term “possession or control” to include both those entities that have possession or control as defined in the existing regulations and those entities that merely have custody as defined in this proposed rule. In some cases, this request would make multiple entities concurrently responsible for fulfilling the Act's inventory, summary, and repatriation processes. The Department has declined to make this change as such an interpretation is inconsistent with the framework and legislative history of the Act. Congress provided no indication in the Act or its legislative history that such an expansive interpretation was its intent, and various features of the Act, including civil penalties, right of possession, and museum obligations, presume that a single museum or Federal agency would be responsible for compliance with the Act. However, the Department acknowledges the underlying intent of this request to ensure repatriation of all holdings or collections subject to the Act and has proposed other revisions that seek to address this issue by directing museums and Federal agencies to share greater information and increase efforts to complete inventories, summaries, and repatriation of human remains and cultural items in the custody of other entities.
The Department proposes to revise the term “receives Federal funds” to clarify that any recipient of Federal financial assistance would be deemed to receive Federal funds under this part. The definition is drawn from the interpretation of comparable terms from the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, as amended, implementing regulations, and OMB's Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 200). The “Receives Federal funds” requirement may be satisfied by direct or indirect receipt of funds from the Federal government. Satisfaction of the requirement through indirect funding is permissible and consistent with the Supreme Court's decision in
For example, an educational institution that accepts no direct Federal financial assistance is deemed to receive Federal financial assistance when it enrolls students who receive Federal grants that must be used for educational purposes (34 CFR part 106). A Tribal museum receives Federal funds for purposes of repatriation if the Indian Tribe of which the museum is a part receives Federal financial assistance. A county library receives Federal funds for purposes of repatriation if its State government or other agency provides a subaward to the library as part of a Federal grant or award. The term also underscores that the U.S. Government's payments that are compensatory, such as payments in lieu of taxes paid under the Payments in Lieu of Taxes Act, as amended (31 U.S.C. 6901
The Department proposes to replace the term “disposition” in the existing regulations at § 10.2(g)(5) with two separate terms: “disposition” and “repatriation” used consistently throughout the regulations. In the proposed revision, “repatriation” applies only to Subpart C and has been incorporated into the title of that subpart. The proposed revision would denote that a museum or Federal agency acknowledges and recognizes that a lineal descendant, Indian Tribe, or NHO has control or ownership of human remains or cultural items in a holding or collection. Although the phrase, control or ownership, is not defined in the Act or the regulations, it is used to refer to the rights of lineal descendants, Indian Tribes, and NHOs in Native American human remains or cultural items acknowledged and recognized by the Act. The phrase, control or ownership, is used to differentiate “disposition” and “repatriation” from terms used in other sections of the Act, such as the “right of possession,” which a museum or Federal agency may use to assert its lawful control or ownership, or “possession or control,” which is an element of applicability under the Act that itself does not determine control or ownership or a right of possession. In describing repatriation, the Act uses the terms “return,” “owned,” and “owned or controlled” (25 U.S.C. 3005). Of these terms, the phrase, control or ownership, is the most appropriate to apply to human remains as well as cultural items that may be subject to repatriation and describes the existing rights of lineal descendants, Indian Tribes, and NHOs more accurately. The phrase, control or ownership, is intended to indicate that, as in the Act, human remains and cultural items in holdings or collections belong, in the first instance, to lineal descendants, Indian Tribes, and NHOs and not to the museum or Federal agency unless the museum or Federal agency is able to prove a “right of possession.” By using “right of possession” as a standard of repatriation, the Act establishes that museums and Federal agencies do not have a rightful legal interest in human remains or cultural items unless the museum or Federal agency can prove an authoritative transfer of that “right of possession.”
The Department proposes a new defined term “right of possession” by
Congress did not provide a process for a museum or Federal agency to assert a right of possession to human remains and associated funerary objects. This approach is consistent with Congress' intent to distinguish human remains and associated funerary objects from cultural items as quasi-property. Applicable common law in the United States generally accepts that human remains and associated burial items cannot be “owned” in the same manner as conventional property. The Act (25 U.S.C. 3001 (13)) follows the common law by distinguishing between the property attributes of Native American unassociated funerary objects, sacred objects, or objects of cultural patrimony, and the quasi-property attributes of Native American human remains and associated funerary objects.
Congress acknowledged that the right of possession to unassociated funerary objects, sacred objects, or object of cultural patrimony, as defined in the Act, may be subject to a Fifth Amendment takings analysis, and that these objects may potentially be considered property. A right of possession for prehistoric cultural items fitting these categories might be shown through a written authorization from a competent authority to excavate, remove, and curate such items from a particular area or site. Although Congress also determined that the original acquisition of Native American human remains and associated funerary objects which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate Indian Tribe or NHO is deemed to give right of possession to those human remains and associated funerary objects, Congress chose not to make that right of possession to human remains and associated funerary objects subject to a Fifth amendment takings analysis. Congress was clear that it did not intend to categorize human remains and associated funerary objects as property under the Act, as had been its approach for unassociated funerary objects, sacred objects, or object of cultural patrimony. Thus, a Fifth Amendment taking does not result from the repatriation of human remains and associated funerary objects.
In the proposed revision, the Department interprets “voluntary consent” and “full knowledge and consent” considering the history of Indian country and recognizes that “voluntary consent” and “full knowledge and consent” does not include “consent” given under duress or as a result of bribery, blackmail, fraud, misrepresentation, or duplicity on the part of the recipient. As such, consent in this definition must be shown to have been fully free, prior, and informed consent.
In response to consultation with Indian Tribes and NHOs, the Department proposes to revise that a sacred object is, in the words of the Act, “needed” for a traditional Native American religious practice. Such practice could include the need to ritually inter the object. The Department proposes to add to the definition of sacred object (and to all specific definitions of cultural items) that identification of a sacred object is according to a lineal descendant, Indian Tribe, or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of a sacred object is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of a sacred object, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how a lineal descendant, Indian Tribe, or NHO shares the information needed to identify a sacred object.
The Department proposes to revise the term “traditional religious leader” in response to consultation with Indian Tribes and NHOs. The term is not defined in the Act and the proposed revisions are intended to clarify and simplify the definition. The proposed revisions intend to place the authority for identifying a traditional religious leader in the hands of an Indian Tribe or NHO. There is no requirement for an Indian Tribe or NHO to disclose information about the cultural, ceremonial, or religious practices or cultural duties or leadership role used to identify a traditional religious leader.
The Department proposes to revise the term “Tribal lands” by removing the provision in the existing regulations related to a taking of property without compensation within the meaning of the Fifth Amendment of the United States Constitution (25 U.S.C. 3001(13)). Comments to the 1995 final rule sought clarification regarding the application of NAGPRA to privately owned lands within the exterior boundaries of an Indian reservation. To address any potential conflict, the final rule codified language stating that the regulations will not apply to Tribal lands to the extent that any particular action authorized or required will result in such a taking of property. A review of the legislative history for the Act shows this concept does not apply to the statute as enacted and therefore is removed from the definition of Tribal lands.
The Department proposes to add a new term “Tribal lands of an NHO” to more accurately describe a subset of Tribal lands in Hawai'i so it can be applied in the regulatory process in Subpart B. In the Act, priority for disposition of human remains or cultural items from Tribal lands is in the Indian Tribe or NHO on whose Tribal lands the human remains or cultural items were removed. While the Tribal lands of an Indian Tribe is clearly identified by the definition of Tribal lands, the application of this priority on Tribal lands in Hawai'i is not clear from the definition of Tribal lands alone. This definition provides for an NHO to take on responsibility for the provisions of the Act from the State of Hawai'i DHHL. When an NHO has a lease or license from DHHL pursuant to the Hawaiian Homes Commission Act (HHCA), that NHO can elect to take on any of the responsibilities under Subpart B of the proposed regulations on its Tribal lands (see proposed §§ 10.5(c), 10.6(a), and 10.7(c)).
The Department proposes to revise the term “unclaimed cultural items” for clarity. The proposed revision retains the same central requirement of the existing definition but removes the more regulatory process part of the existing regulation to the regulatory text (see proposed § 10.7(e)).
The Department proposes to add a new term “United States” to provide a geographical descriptor throughout this part.
This section of the proposed rule would improve the organizational structure of the existing regulations and better align the requirements with Congressional intent. The Department proposes to relocate existing regulatory provisions at § 10.14 to Subpart A-General.
The proposed revisions would remove the criteria for determining lineal descent in the existing regulations at § 10.14(b), as it is repetitive of the definition for lineal descendant and not necessary. In conjunction with the defined term “affiliation,” the proposed revisions reflect the intent of Congress that for purposes of disposition or repatriation, all that is required is a reasonable connection between human remains or cultural items and an Indian Tribe or NHO (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). The proposed revisions identify two kinds of affiliation for purposes of disposition or repatriation: cultural or geographical.
For cultural affiliation, the proposed revisions clarify the existing requirements by moving “cultural affiliation” to this section to include not only what it is, but also how it is established and what it does not require. The proposed revisions simplify the information and criteria needed to identify cultural affiliation by removing extraneous or duplicative language that has often been a barrier to repatriation. The proposed revisions also clearly explain that more than one Indian Tribe or NHO may have a cultural affiliation to human remains or cultural items.
For example, assume that the only information available for individual human remains shows that the human remains were removed from a particular site and that the human remains have a date range spanning 1,000 years. Indian Tribe A has a relationship of shared group identity to an earlier group who occupied the site at some point during that 1,000-year span. Similarly, Indian Tribe B has a shared group identity with a different earlier group that also occupied the site at different point during that 1,000-year span. Even though Indian Tribe A and Indian Tribe B do not themselves have a relationship of shared group identity, both Indian Tribe A and Indian Tribe B have a cultural affiliation with the human remains from that site.
In response to consultation with Indian Tribes and NHOs, the Department emphasizes that “a preponderance of the evidence” is a similar standard to a “reasonableness” requirement, both of which are common legal concepts. In both standards, a “more likely than not” assessment is required, such that the reasonableness requirement for tracing cultural affiliation is satisfied by a preponderance of the evidence establishing cultural affiliation. Congressional report language states cultural affiliation “shall be established by a simple preponderance of the evidence,” and that phrase is used in the proposed revisions.
For geographical affiliation, the proposed revisions draw on language in the Act requiring the identification of “the geographical and cultural affiliation” (25 U.S.C. 3003(a)) and include the information and criteria needed to establish geographical affiliation. The proposed revisions clarify, as under the existing regulations at § 10.11, “geographical affiliation” is identified by tracing a relationship between an Indian Tribe or NHO and a geographic area connected to the human remains or cultural items. While cultural affiliation requires a simple preponderance of the evidence given the information available, geographical affiliation only requires that the information be available. The proposed revisions also clearly explain that more than one Indian Tribe or NHO may have a geographical affiliation to human remains or cultural items.
For example, assume that the geographic area connected to human remains and associated funerary objects is the Tribal lands of Indian Tribe L, the adjudicated aboriginal land of Indian Tribe N, and the acknowledged aboriginal land of Indian Tribes M, N, O, and P. All the Indian Tribes (L, M, N, O, and P) have a geographical affiliation with the human remains. Any information beyond the geographic area, for example when the human remains or cultural items were removed or types of associated funerary objects, may provide information sufficient to identify a more specific cultural affiliation to one or more of the Indian Tribes but must not be used to limit the geographical affiliation to all the Indian Tribes.
The proposed revision states (in response to consultation with Indian Tribes and NHOs) that the information used to identify geographical affiliation may provide information sufficient to also establish cultural affiliation. Because geographical information is one line of information that may be used for cultural affiliation, that information alone may be sufficient to establish cultural affiliation as well as geographical affiliation.
The proposed revisions provide clear instructions to Indian Tribes, NHOs, museums, and Federal agencies for making and considering single claims or requests and for resolving competing claims or requests by identifying the Indian Tribe or NHO with the closest affiliation (see proposed § 10.3(c) and (d)). The proposed revisions clearly explain that two or more Indian Tribes or Native Hawaiian organization may submit a claim for disposition or a request for repatriation and may claim joint disposition or request joint repatriation of human remains or cultural items. Joint claims or requests are considered a single claim or request and not competing claims or requests.
In rare cases when there are competing claims or requests, museums and Federal agencies must identify the “closest cultural affiliation” (25 U.S.C. 3002(a)(2)(B)) and the “most appropriate claimant” (25 U.S.C. 3005 (e)). The Act provides no process for making these identifications, but in the inventory and notification provisions of the Act (25 U.S.C. 3003(d)(2)(B) and (C)), there is a distinction made between two types of cultural affiliation: clearly identifiable as to tribal origin and not clearly identifiable as being culturally affiliated but determined by a reasonable belief. The Department proposes to use this language to inform how a museum or Federal agency might resolve competing claims for disposition or requests for repatriation. The standard for establishing cultural affiliation in the first instance is always a preponderance of the evidence, but when multiple Indian Tribes or NHOs meet that standard and have submitted competing claims or requests, these paragraphs provide a priority order to differentiate between culturally affiliated Indian Tribes. In resolving competing claims or requests, a museum or Federal agency may identify one or more Indian Tribes or NHOs with the closest affiliation.
Table 4 shows how the Department proposes to reorganize the existing regulatory requirements regarding cultural or geographical affiliation.
This section of the proposed rule would provide a general overview to Subpart B and clarify the responsibilities of Indian Tribes, NHOs, Federal agencies, and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for human remains or cultural items on Federal or Tribal lands. This section would consolidate general information in the existing regulations at §§ 10.3, 10.4, and 10.5. The Department proposes to revise the title of Subpart B (in response to consultation with Indian Tribes and NHOs) to better reflect the intent of Congress for this section of the Act (25 U.S.C. 3002).
The Department proposes to employ a new term, “appropriate official,” to denote the person or persons responsible for completing the regulatory requirements related to a discovery, excavation, and disposition of human remains or cultural items on Federal or Tribal lands. The revision would improve consistency with the Act by requiring certain actions be taken by the appropriate official for an Indian Tribe, NHO, Federal agency, and DHHL concerning discoveries, excavations, and disposition on Federal or Tribal lands.
On all Federal lands in the United States or on some Tribal lands in Hawai`i, the Department proposes (in response to consultation with Indian Tribes and NHOs) to move the existing regulatory requirement for a plan of action to the beginning of the subpart. In the existing regulations, § 10.5(e) requires Federal agency officials to prepare, approve, and sign a written plan of action after consultation and before a planned activity that may result in the excavation of human remains or cultural items. The proposed revisions would require a plan of action before for any planned activity that may result in the discovery or excavation of human remains or cultural items as well as after a discovery of human remains or cultural items and before authorizing an excavation that may result in the discovery or excavation of human remains or cultural items. The Department proposes to simplify the plan of action in three separate steps (see proposed § 10.4(b)): (1) Step 1—Initiate consultation; (2) Step 2—Consult with requesting parties; and (3) Step 3—Approve and sign the plan of action. Consulting parties listed in § 10.4(b)(1) would not be considered the same as consulting parties under other applicable law, specifically under 36 CFR part 800. The Department proposes to use specific terms to clarify the distinction between a consulting party (as defined in § 10.4(b)(1)(i)) and a requesting party (any consulting party that submits a written request to consult).
In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus, to the maximum extent possible, on the content of the plan of action. In addition, a record of consultation must include the effort made to seek consensus or describe efforts to identify a mutually agreeable alternative. The consultation record must note the concurrence, disagreement, or nonresponse of the requesting parties to the plan of action. These requirements are used throughout the proposed regulations whenever consultation with requesting parties is required. The Department proposes to remove some of the existing requirements for a plan of action that are not necessary and overly intrusive. Depending on the results of consultation, any of these elements may be included in a plan of action but are no longer the minimum requirement for a plan of action. Specifically, the Department proposes to remove the following items from a plan of action in the existing regulations at § 10.5(e):
(1) The kinds of objects considered as cultural items;
(2) The specific information used to determine disposition;
(4) The planned archaeological recording;
(5) The kinds of analysis planned for each kind of object; and
(8) The nature of reports to be prepared.
The Department proposes to include in a plan of action the preference of requesting parties for stabilizing and covering human remains or cultural items in situ, protecting and relocating human remains or cultural items, if removed, or providing appropriate treatment, care, or handling of human remains or cultural items. For example, under the proposed regulations, a plan of action might indicate that requesting parties prefer protection of human remains or cultural items in situ, but when that is not possible, the plan of action may require that the appropriate official protect and relocate the human remains or cultural items by burying them in a nearby location. Once disposition under § 10.7 is complete (including any required notice publication and claim), the claimants may determine the care, custody, or physical transfer of the human remains or cultural items, including deciding to leave the human remains or cultural items buried in the nearby location.
In response to consultation with Indian Tribes and NHOs and based the experience of Federal agencies with these requirements since 1990, the Department is aware of a preference by some Indian Tribes for allowing natural exposure or erosion of human remains or cultural items to continue, without covering or removing human remains or cultural items. In those cases, a plan of action may indicate that requesting parties prefer the appropriate official take no action upon the discovery of human remains or cultural items that
The Department proposes to retain the option for Federal agencies or DHHL to enter into a comprehensive agreement for all land managing activities on Federal or Tribal lands under its responsibility. The proposed regulations would require a comprehensive agreement be consented to by a majority of requesting parties and include, at minimum, the information required in a plan of action.
Table 5 shows how the Department proposes to reorganize the existing regulatory requirements on Federal or Tribal lands after November 16, 1990.
This section of the proposed rule would implement the requirements of the Act regarding a discovery of human remains or cultural items on Federal or Tribal lands after November 16, 1990 (
The proposed language in § 10.5(a) and (b) would prescribe specific reporting and documentation procedures that any person who knows or has reason to know of a discovery must take upon discovery of human remains or cultural items. Specifically, the proposed language would:
• Establish reporting timeframes (immediately with written documentation in 24 hours), requirements to secure and protect the discovery, and documentation requirements to include the location and contents of the discovery.
• Provide clear instructions for reporting the discovery in Table 1 to § 10.5, which identifies the appropriate official and the additional point of contact who must be informed of a discovery, based on the location of the discovery.
The Department also proposes to require the appropriate official respond to any discovery on Federal or Tribal lands and keep the existing regulations' timeline of three days. On Tribal lands, the existing regulations only recommend actions by an appropriate official by using the verb “may” in the existing regulation at § 10.4(e). The Department proposes to change this to “require,” on Tribal lands in Alaska and the continental United States, that the appropriate official for an Indian Tribe respond to a discovery and certify that an activity may resume (see proposed § 10.5(c) and (e)), with an option to delegate this responsibility to the Bureau of Indian Affairs or another Federal agency. On Tribal lands of an NHO, the NHO may accept responsibility for discoveries on its Tribal lands; otherwise DHHL is responsible for discoveries on Tribal lands in Hawai`i. Table 6 shows the name of each requirement and a shortened version of the deadline in the proposed revisions.
On all Federal lands in the United States or on Tribal lands in Hawai`i, the Department proposes (in response to consultation with Indian Tribes and NHOs) to revise the existing notification and consultation requirements for discoveries under § 10.4(d)(iii) and (iv) by requiring a plan of action. Although
The Department proposes to provide additional time for the appropriate official to certify an activity related to a discovery may resume. In the existing regulations at § 10.4(d) and (e), the appropriate official on Federal or Tribal lands must certify receipt of a notification of a discovery within three days and the activity related to the discovery may resume 30 days later. The existing regulations do not allow for any additional time and do not provide a mechanism for the appropriate official to prevent an activity from resuming 33 days after a discovery.
The Department proposes to build in an additional 35 days, if needed, for consultation with Indian Tribes and NHOs, evaluation of the discovery, and to carry out a plan of action (see proposed § 10.5(e)). The Department is specifically seeking input during public comment on this timeline. The Act requires that an activity may resume 30 days after the appropriate official certifies that notification of a discovery was received (25 U.S.C. 3002(d)(1), last sentence). The legislative history clearly indicates that reporting a discovery is not meant to be an impediment to resuming a lawful activity on Federal or Tribal lands. However, the Department proposes to allow an additional 35 days in the timeline by separating the requirements for responding to a discovery within 3 days from the requirements for certifying that an activity may resume within 30 days. This would allow a maximum of 65 business days (35 business days to certify and 30 business days later resume the activity) after a discovery on Federal or Tribal lands before an activity could resume. If the appropriate official determines an earlier date for resuming the activity is acceptable, there is no restriction against certifying the activity may resume within less than 65 days. The proposed change would allow the appropriate official more time, if needed, to consult with Indian Tribes and NHOs, evaluate the potential need for an excavation, and carry out the steps in a plan of action.
Table 7 shows how the Department proposes to reorganize the existing regulatory requirements regarding a discovery.
This section of the proposed rule would implement the requirements of the Act regarding excavation of human remains or cultural items on Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(c)). This section would include and clarify the requirements in the existing regulations at § 10.3(b) and (c) regarding excavations.
The Department proposes to revise the existing regulations to clarify the jurisdiction of a Federal agency to issue a permit under Section 4 of the Archaeological Resources Protection Act (ARPA) for an excavation. This proposed change, based on the legislative history of NAGPRA, would address requests from Federal agencies and DHHL to correct the scope of jurisdiction in the existing regulations at § 10.3(b)(1), which requires the Bureau of Indian Affairs to take certain actions on private lands for which they do not have jurisdictional authority. The Department proposes that an excavation on Federal or Tribal lands would only require a permit under the ARPA (16 U.S.C. 470cc) if the excavation would occur on “Indian lands” or “public lands” under ARPA (referred to and defined as “ARPA Indian lands” and “ARPA public lands”), subject to the exemptions in the ARPA Uniform Regulations. ARPA's definition of “Indian lands” and “public lands” is narrower than “Tribal lands” and “Federal lands” under NAGPRA, which is why the Department proposes to include the ARPA definitions in these proposed regulations. The legislative history of NAGPRA makes clear that Congress intended to protect human remains and cultural items by requiring ARPA permits be issued for NAGPRA excavations when a permit is also required under ARPA.
Consistent with the Act, the proposed language in § 10.6(a) would require, on Tribal lands, an Indian Tribe or NHO to consent in writing to an excavation. On Tribal lands in Alaska and the continental United States, an Indian Tribe may delegate this responsibility to the Bureau of Indian Affairs or another Federal agency. On Tribal lands of an NHO, the NHO may accept responsibility for excavations on its Tribal lands; otherwise DHHL is responsible for excavations on Tribal lands in Hawai`i.
On all Federal lands in the United States or on Tribal lands in Hawai`i, the Department proposes (in response to consultation with Indian Tribes and NHOs) to revise the notification and consultation requirements for excavations under existing § 10.3(c)(1)
Table 8 shows how the Department proposes to reorganize the existing regulatory requirements regarding excavation and consultation.
This section of the proposed rule would implement the requirements of the Act regarding the disposition of human remains or cultural items removed from Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(a) and (b)). This section would include and clarify the requirements in the existing regulations at §§ 10.6 and 10.7 regarding dispositions.
The Department proposes to replace the term “disposition” in the existing regulations with two separate terms: “disposition” and “repatriation.” In the proposed revision, “disposition” applies consistently throughout but only to Subpart B. In the existing regulations, “disposition” and the undefined word custody are used interchangeably at times while “disposition” is also used as a catch-all term for any transfer of human remains or cultural items under the regulations. The Act uses the terms “ownership,” “right of control of the disposition,” and “disposition of and control over” in describing this process (25 U.S.C. 3002). In the proposed revision, “disposition” is the title of this section and means the appropriate official acknowledges and recognizes a lineal descendant, Indian Tribe, or Native Hawaiian organization has control or ownership of human remains or cultural items removed from Federal or Tribal lands.
In response to consultation with Indian Tribes and NHOs, the Department proposes to require that disposition occur as soon as possible, but no later than one year, after the discovery or excavation of human remains or cultural items on Federal or Tribal lands. In the existing regulations, there is no deadline for disposition, and the Department is aware of many instances where human remains or cultural items have not completed the regulatory process for years or even decades after discovery or excavation. This timeline will ensure that, on all Federal lands in the United States or on Tribal lands in Hawai`i, when disposition cannot be completed within one year, the Federal agency or DHHL reports the human remains or cultural items to the Manager, National NAGPRA Program.
The Department proposes to clarify the requisite steps for disposition by establishing a step-by-step process with corresponding deadlines. Table 9 shows the name of each step and a shortened version of the deadline in the proposed revisions.
The Department proposes to simplify and clarify information contained in the existing regulations at § 10.6(a). The proposed revisions are consistent with the Act and the existing regulations in establishing the priority for disposition (see proposed § 10.7(a)), which can be simplified to be:
(1) Lineal descendants,
(2) Tribal lands Indian Tribe or NHO,
(3) Indian Tribe or NHO with clear cultural affiliation,
(4) Indian Tribe or NHO with reasonably identified cultural affiliation,
(5)(i) Adjudicated aboriginal land Indian Tribe, and
(5)(ii) Indian Tribe with a stronger cultural relationship than (5)(i).
The Department proposes to remove the requirement in the existing regulations at § 10.6(c) for publishing notices or requiring claims for disposition to a lineal descendant. The existing regulations do not provide any requirements for disposition of human remains or cultural items from Tribal lands. The Department proposes to require written documentation for disposition to a lineal descendant or on Tribal lands to better align with the Act (25 U.S.C. 3002(a)(1) and (2)(A); note the lack of a requirement for a notice or claim). On Tribal lands in Alaska and the continental United States, an Indian Tribe may delegate its responsibilities for disposition to the Bureau of Indian Affairs or another Federal agency. On Tribal lands of an NHO, the NHO may accept responsibility for dispositions on its Tribal lands; otherwise DHHL is responsible for dispositions on Tribal lands in Hawai`i.
The Department proposes to revise language in the existing regulations at § 10.6(c) describing the requirements for Federal agencies to publish notices, receive claims, and complete dispositions in one paragraph with long, complex sentences. On all Federal lands in the United States and on Tribal lands in Hawai`i, the proposed revisions would provide five clearly written steps to complete the disposition of human remains or cultural items and establish deadlines and timelines.
The Department proposes to change the notice publication requirement in the existing regulations at § 10.6(c) that requires two publications of a notice in local area newspapers at least one week apart. This requirement has become increasingly burdensome given the general changes in newspaper publications since 1995. The Department proposes to require only one publication in the
The Department proposes a new requirement for completing dispositions by sending claimants and the Manager, National NAGPRA Program, a written disposition statement. In the case of joint claims for disposition, the disposition statement would identify and be sent to all claimants. In the case of competing claims for disposition, the proposed revisions give guidance and timelines for identifying the most appropriate claimant and completing the disposition. The Act requires that the Federal agency apply the priority order and determine the “closest cultural affiliation” based on the evidence before it (25 U.S.C. 3002(a)(2)(B)) and does not provide for a stay of disposition to acquire further evidence or information.
The Department proposes to move the existing section at § 10.7 to be a paragraph under the larger disposition section and modify the existing timeline. On all Federal lands in the United States or on Tribal lands in Hawai`i, when disposition cannot be completed within one year of a discovery, excavation, or notice of intended disposition, the proposed revisions require that the Federal agency or DHHL must report the human remains or cultural items to the Manager, National NAGPRA Program. These provisions would apply to any human remains or cultural items that were discovered or excavated on Federal lands in the United States or on Tribal lands in Hawai`i after November 16, 1990, even if it has been more than one year since the discovery, excavation, or notice of intended disposition. Federal agencies and DHHL should submit a list of all unclaimed human remains or cultural items removed from Federal or Tribal lands. As in the existing regulations at § 10.7(c) through (e), the proposed revisions would provide a process whereby a Federal agency or DHHL may transfer or reinter unclaimed human remains or cultural items, after it publishes a notice of proposed transfer or reinterment.
The Department proposes to clarify the requisite steps for unclaimed human remains or cultural items by establishing a step-by-step process with corresponding deadlines. Table 10 shows the name of each step and a shortened version of the deadline in the proposed revisions.
Table 11 shows how the Department proposes to reorganize and revise the existing regulatory requirements regarding disposition.
I. Section 10.8 General
This section of the proposed rule would provide a general overview to Subpart C and clarify the requirements for museums and Federal agency with possession or control of holdings or collections. The section would consolidate general information in the existing regulations at §§ 10.8(a), 10.9(a), 10.11(e), and 10.17(a). The Department proposes to revise the title of Subpart C (in response to consultation with Indian Tribes and NHOs) to better reflect the intent of Congress for these sections of the Act (25 U.S.C. 3003-3005).
The Department proposes to clarify, regardless of the physical location of a holding or collection, who is responsible for carrying out the requirements of the Act. The proposed revisions would provide both museums and Federal agencies with instructions on determining possession or control of holdings or collections. As discussed in the definition section, whether a museum or Federal agency has possession or control is a legal determination that must be made on a case-by-case basis. However, when a museum with custody of human remains or cultural items cannot identify any person, institution, State or local government agency, or Federal agency with possession or control, the museum should presume it has possession or control for purposes of Subpart C. When a Federal agency cannot determine if human remains or cultural items came into its possession or control before or after November 16, 1990, or cannot identify the type of land the human remains or cultural items were removed from, the Federal agency should presume it has possession or control for purposes of Subpart C.
The Department proposes two new requirements aimed at locating Federal collections in non-Federal museums (see proposed § 10.8(c)). Specifically, the proposed language would require that:
• A museum must submit a statement describing Federal holdings or collections in its custody to the responsible Federal agency and to the Manager, National NAGPRA Program, no later than one year after the effective date of the final rule; and
• Within 120 days of receiving such a statement, the Federal agency must acknowledge its possession or control of a holding or collection, acknowledge that it does not have possession or control of a holding or collection, or acknowledge it has joint possession or control with the museum.
These new requirements are a direct response to requests from Federal agencies and Indian Tribes who struggle to locate Federal collections in non-Federal museums. In 2010, the Government Accountability Office commented on this issue in its report on Federal agency compliance with the Act. Addressing this issue, the Department's detailed response to the Government Accountability Office's
If a museum has custody of a holding or collection from multiple agencies or is unsure which Federal agency has possession or control of the holding or collection, the museum must send information on the holding or collection to any Federal agency that might have an interest and to the Manager, National NAGPRA Program. If a museum is unsure of who the appropriate point of contact is for a Federal agency, the Department recommends contacting the Federal Preservation Officer to assist in identifying the appropriate agency contact. The Advisory Council on Historic Preservation keeps an updated list at
The Department proposes a new requirement for museums with custody of holdings or collections for which the museum cannot identify who has possession or control. The museum would be required to submit a statement describing holdings or collections in its custody for which it cannot identify any person, institution, State or local government agency, or Federal agency with possession or control. The statement would be sent to the Manager, National NAGPRA Program, no later than one year after the effective date of the final rule. This new requirement is a direct response to requests from Indian Tribes who struggle to determine their rights to holdings or collections in the custody, but not in the possession or control, of a museum. The Manager, National NAGPRA Program, would share this information with appropriate parties to determine possession and control and proceed with the inventory, summary, and repatriation processes.
Table 12 shows how the Department proposes to reorganize and add to the existing regulatory requirements for museum or Federal agency holdings or collections.
This section of the proposed rule would implement the requirements of the Act regarding summaries of holdings or collections to facilitate the repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony (25 U.S.C. 3004 and 3005). In response to consultation with Indian Tribes and NHOs, the Department proposes to retain the existing requirement that a museum or Federal agency prepare a summary for any holding or collection that may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony. NAGPRA requires “Each Federal agency or museum which has possession or control over holdings or collections of Native American unassociated funerary objects, sacred objects, or objects of cultural patrimony shall provide a written summary of such objects based upon available information held by such agency or museum” (25 U.S.C. 3004(a)). The statutory language is unclear whether summaries should include only the unassociated funerary objects, sacred objects, or objects of cultural patrimony, or the entire collection which may include these cultural items. The Act was enacted for the benefit of Indians and therefore the canon of construction applies that statutes “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit” (
The Department proposes to consolidate the requirements for repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony into a seven-step process in a single section. These same requirements are currently spread out among the existing regulations at §§ 10.8, 10.10, and 10.13. In addition, the Department proposes to add more detailed instructions for evaluating multiple requests for repatriation and resolving stays of repatriation than currently in the existing regulations at § 10.10(c).
The Department proposes to clarify the requisite steps for repatriation by establishing a step-by-step process with corresponding deadlines. Table 13 shows the name of each step and a shortened version of the deadline in the proposed revisions.
The intent of these proposed revisions is to correct inaccuracies and ambiguities in the existing regulations by using a clear, easy to follow, step-by-step process, and ensure a timely resolution of any requests for repatriation. For example, the proposed revisions would clarify, consistent with the Act, that invitations to consult follow the completion of a summary. In the existing regulations at § 10.8(d)(2), consultation is initiated “no later than the completion of the summary process.”
The proposed revisions would also directly address a required step that lacks explanation or deadlines in the existing regulations. The Department proposes in Step 5 to require a museum or Federal agency to respond no later than 60 days after receiving a request for repatriation. The Department also proposes four specific options for the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Assert and prove a right of possession and refuse repatriation.
(4) Determine the most appropriate requestor among competing requests.
To update deadlines for completing a summary, the proposed revisions integrate all the deadlines for completing a summary in the first paragraph (see proposed § 10.9(a), Table 1 to § 10.9). The proposed revisions would identify the past required deadlines for completing a summary (
To establish new timelines, the proposed revisions would require in Step 2 a written request to consult. This new requirement for a written request to consult (which can include email) is necessary to then require a museum or Federal agency to respond to the request within 10 days. In this same subparagraph, the proposed revisions require requests to consult be submitted prior to a notice publication. This requirement ensures the repatriation process moves forward by certain deadlines in later steps. After publication of a notice, any party, even if they have not requested to consult, can make a request for repatriation as a competing claim (see proposed § 10.9(f)(4)).
To clarify procedures, the proposed revisions would require in Step 4 that any party wishing to make a request for repatriation must do so in writing. In the existing regulations at §§ 10.8 and 10.10, there are references to making requests for repatriation, but not until the very end of the process under notification in the existing regulations at § 10.10(a)(3) is it clear that such a request must be in writing. The Department is specifically seeking input during public comment on the deadlines for responding to a request for repatriation and sending a repatriation statement.
In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus, to the maximum extent possible. In addition, a record of consultation must include the effort made to seek consensus or describe efforts to identify a mutually agreeable alternative. For any determination considered during the consultation process, the consultation record must note the concurrence, disagreement, or nonresponse of the requesting parties. These requirements are used throughout the proposed regulations whenever consultation with requesting parties is required.
The Department proposes to remove the existing regulations at § 10.8(d)(4)(iii) because it requires Indian Tribes and NHOs to provide information about funerary objects, sacred objects, or objects of cultural patrimony. This kind of information is often very sensitive and providing it in writing or in the absence of qualified persons within the Indian Tribe or NHO might be inappropriate. The proposed language would still provide for an exchange of information about the types of objects that might be unassociated funerary objects, sacred objects, or objects of cultural patrimony, but would do so in a way to allow for sensitive information to be protected.
In the existing regulations at § 10.10(e), museums and Federal agencies must inform Indian Tribes and NHOs about any potentially hazardous substances used to treat any of the objects only after repatriation has occurred. The proposed revisions would require a museum or Federal agency to disclose information about the presence of any potentially hazardous substances first in the summary (see proposed § 10.9(a)(1)(v)) and second in the notice of intended repatriation (see proposed § 10.9(f)(1)(vi)).
The proposed revisions clearly outline informational requirements for a
In enumerating the unassociated funerary objects, sacred objects, or objects of cultural patrimony in a notice, museums and Federal agencies would be encouraged to count in a way that reduces the chances of having to issue a correction notice. For example, identifying 3 lots of shell beads means that no matter the exact number of beads present, the count would stand, whereas identifying exactly 1,960 shell beads in a notice would mean that if additional (or fewer) beads were located before repatriation occurs, a correction notice would be required because the number of objects would have changed.
The Department proposes to require a new document to complete the repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony to a requestor. A written repatriation statement would be sent to and would identify all requestors in the case of joint requests. In accordance with the recommendation by the Government Accountability Office in a 2010 report on the implementation of the Act, a copy of the repatriation statement would also be sent to the Manager, National NAGPRA Program. Table 14 shows how the Department proposes to reorganize the existing regulatory requirements for repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony.
This section of the proposed rule would implement the requirements of the Act regarding inventories of holdings or collections to facilitate the repatriation of human remains and associated funerary objects (25 U.S.C. 3003 and 3005). The Department proposes to consolidate the requirements for repatriation of human remains and associated funerary objects into an eight-step process in a single section. These same requirements are currently spread out among the existing regulations at §§ 10.9, 10.10, 10.11, and 10.13. In addition, the Department proposes to add more detailed instructions for evaluating multiple requests for repatriation and resolving stays of repatriation than currently in the existing provisions at § 10.10(c).
On March 15, 2010, the Department issued a final rule with request for comment that codified procedures for the disposition of culturally unidentifiable Native American human remains in the possession or control of museums or Federal agencies (75 FR 12378, March 15, 2010). These procedures require museums and Federal agencies to consult with, and transfer control of, culturally unidentifiable human remains to the Indian Tribes and NHOs from whose Tribal lands or from whose aboriginal lands the human remains were removed.
Comments on the March 15, 2010, final rule raised concerns that the financial burden on museums of consultation and disposition of culturally unidentifiable human remains would be “tremendous,” “onerous,” “overwhelming,” “ruinous,” or “significant.” However, since the Act became law in 1990, museums and Federal agencies have accounted for over 84,000 Native American human remains in notices, including over 21,000 culturally unidentifiable human remains, with no indication that a single museum has suffered overwhelming or ruinous consequences from compliance with the Act. Every year since 1994, Congress has provided approximately $2 million dollars in grant funds for consultation and repatriation activities to assist in compliance with the Act.
Comments for the March 15, 2010, final rule also raised questions about what types of relationships were required for disposition of culturally unidentifiable human remains. Using a geographic relationship between an Indian Tribe or NHO and human remains and associated funerary objects for the purpose of repatriation aligns with the Act's requirements for museums and Federal agencies to “identify the geographical and cultural affiliation of such items” and with the general intent of repatriation under the Act. As noted in the response to comments for the March 15, 2010, final rule, the disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony to Indian Tribes and NHOs based on criteria other than cultural affiliation was clearly anticipated by Congress.
Section 3002(a)(2) of the Act which was used as the model for the March 15, 2010, final rule specifically authorizes disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony removed from Federal or Tribal lands after November 16, 1990 to the Indian Tribe or NHO on whose Tribal lands the human remains or cultural items were removed, to the Indian Tribe or NHO with cultural affiliation to the human remains or cultural items, or to the Indian Tribe having aboriginally occupied the Federal land where the human remains or cultural items were removed. Significantly, under the Act, ownership or control of human remains or cultural items based on Tribal lands origin is given a higher priority than cultural affiliation. Consistent with the terms of the Act, the 2010 rule codified a process for disposition of culturally unidentifiable human remains to the Indian Tribe or NHO from whose Tribal lands, at the time of excavation or removal, or from whose aboriginal land the human remains were removed. In addition to the Act, the implementing regulations rely on the specific recommendations from the Review Committee for disposition of culturally unidentifiable human remains and additional information gleaned from culturally unidentifiable inventories. The existing regulations are consistent with the Department's determination that it was reasonable and appropriate for the disposition of culturally unidentifiable human remains to be based on geographical information given that the designation of “culturally unidentifiable” is often due to a lack of information occasioned by some collection practices rather than a lack of geographical information.
To streamline the existing regulations at § 10.11 regarding disposition of human remains and associated funerary objects currently referred to as culturally unidentifiable, the Department proposes to incorporate the concepts underlying the existing regulations more logically into the overall inventory and repatriation process. As a result, the Department also proposes to generally remove the term “culturally unidentifiable” as the streamlining of these concepts would make this term no longer serve a useful regulatory purpose. Further, this proposed change is intended to more accurately reflect the geographically focused analysis required for an inventory of human remains and associated funerary objects. As discussed above, the proposed revisions identify two kinds of affiliation for purposes of repatriation: cultural or geographical. As discussed in more detail below, the proposed revisions would require that an inventory of human remains and associated funerary objects include determinations of both cultural and geographical affiliation or an explanation why no affiliation could be identified.
2. Require Repatriation of Associated Funerary Objects
While the existing regulations at § 10.11 mandate the disposition of certain categories of culturally unidentifiable human remains by museums and Federal agencies upon receipt of a claim, the transfer of culturally unidentifiable associated funerary objects under the existing regulations is at the discretion of the museum or Federal agency. Following publication of the 2007 proposed rule (72 FR 58582, October 16, 2007), the Department received numerous comments on the voluntary transfer of culturally unidentifiable associated funerary objects. Most of the comments stated that transfer of such objects should also be mandatory. These comments were carefully considered,
The Department proposes to require repatriation of associated funerary objects whenever repatriation of the related human remains occurs. In the Act, Congress differentiated human remains and associated funerary objects from unassociated funerary objects, sacred objects, and objects of cultural patrimony. Congress did this both in its treatment of these items throughout the Act and in its assessment of the potential legal interests at stake for those items, for example, by differentiating the use and analysis of right of possession for human remains and associated funerary objects from a right of possession for cultural items. With respect to the Act, Congress acknowledged that no general property interest exists either in human remains or in the funerary objects associated with them in a burial. This follows common law principles indicating that the next-of-kin of a deceased individual have a quasi-property right of control over the lawful disposition of the decedent's remains. For these reasons, the proposed revision would require repatriation of associated funerary objects whenever the repatriation of human remains is required. Such an action, based on this guidance from Congress, would not result in a taking of property within the meaning of the Fifth Amendment of the United States Constitution.
3. Establish a Step-By-Step Process for Repatriation
The Department proposes to clarify the requisite steps for repatriation of human remains and associated funerary objects by establishing a step-by-step process with corresponding deadlines. Table 15 shows the name of each step and a shortened version of the deadline in the proposed revisions.
The intent of these proposed revisions is to correct inaccuracies and ambiguities in the existing regulations by using a clear, easy to follow, step-by-step process, and ensures a timely resolution of any requests for repatriation. For example, the proposed revisions would clarify, consistent with the Act, that invitations to consult are required before completing an inventory. In the existing regulations at § 10.9(b)(2), consultation is initiated “as early as possible, no later in the inventory process than the time at which investigation into the cultural affiliation . . . is being conducted.”
The proposed revision would also directly address a required step that lacks explanation or deadlines in the existing regulations. The Department proposes in Step 7 to require a museum or Federal agency to respond no later than 30 days after receiving a request for repatriation. The Department also proposes three specific options for the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Determine the most appropriate requestor among competing requests.
To update deadlines for completing an inventory, the proposed revisions integrate all the deadlines in Step 4 (see proposed § 10.10(d), Table 1 to § 10.10). The proposed revisions would identify the past required deadlines for completing an inventory (
To establish new timelines, the proposed revisions would require in Step 2 a written request to consult. This new requirement for a written request to consult (which can include email) is necessary to then require a museum or Federal agency to respond to the request within 10 days. In this same subparagraph, the proposed revisions require requests to consult be submitted prior to a notice publication. This requirement ensures the repatriation process moves forward by certain deadlines in later steps. After publication of a notice, any party, even if they have not consulted, can make a request for repatriation as a competing request (see proposed § 10.10(g)(2)).
To clarify procedures, the proposed revisions would require in Step 6 that any party wishing to make a request for repatriation must do so in writing. In the existing regulations at §§ 10.9, 10.10, and 10.11, there are references to making requests for repatriation, but not until the very end of the process under notification in the existing regulations at § 10.10(b)(2) is it clear that such a request must be in writing. The Department is specifically seeking input during public comment on the deadlines for responding to a request for repatriation and sending a repatriation statement.
In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus, to the maximum extent possible. In addition, a record of consultation must include the effort made to seek consensus or describe efforts to identify a mutually agreeable alternative. For any determination considered during the
The proposed revisions would require that an inventory include specific determinations for human remains and associated funerary objects. In the existing regulations at § 10.9(d), two separate lists of human remains and associated funerary objects comprise the inventory: (1) those with cultural affiliation and (2) those with no cultural affiliation. The Department proposes to revise this requirement to require, for each entry in the itemized list of human remains and associated funerary objects, a determination of one or more of the following:
(1) There is a known lineal descendant;
(2) There is a connection between the human remains and associated funerary objects and an Indian Tribe or NHO through cultural affiliation;
(3) There is a connection between the human remains and associated funerary objects and an Indian Tribe or NHO through geographical affiliation; or
(4) There is no connection between the human remains and associated funerary objects and any Indian Tribe or NHO.
The Department proposes to require museums and Federal agencies update an inventory for any human remains and associated funerary objects previously included in an inventory but not published in a notice of inventory completion by the effective date of the final rule. To update an inventory, a museum or Federal agency would be required to initiate consultation, consult with requesting parties, and determine if there is a connection between the human remains and associated funerary objects and an Indian Tribe or NHO through cultural or geographical affiliation. The updated inventory would be sent to all identified consulting parties and the Manager, National NAGPRA Program, no later than 2 years after the effective date of the final rule. Any museum may request an extension to update its inventory. Consistent with the Act (25 U.S.C. 3003(c)) and the existing regulations at § 10.9(f), only museums may request extension to update an inventory. Federal agencies may not request extensions.
The Department proposes to remove the existing regulations at § 10.9(b)(4)(iii) because it requires Indian Tribes and NHOs to provide information about the kinds of objects they consider to be funerary objects. This kind of information is often very sensitive and providing it in writing or in the absence of qualified persons within the Indian Tribe or NHO might be inappropriate. The proposed language would still provide for an exchange of information about the types of objects that might be funerary objects but would do so in a way to allow for sensitive information to be protected.
In the existing regulations at § 10.10(e), museums and Federal agencies must inform Indian Tribes and NHOs about any potentially hazardous substances used to treat human remains or funerary objects only after repatriation has occurred. The proposed revisions would require a museum or Federal agency to disclose information about the presence of any potentially hazardous substances first in the itemized list (see proposed § 10.10(a)(6)) and second in the notice of inventory completion (see proposed § 10.10(e)(2)(vii)).
The proposed revisions clearly outline informational requirements for a
In enumerating the associated funerary objects in a notice, museums and Federal agencies would be encouraged to count in a way that reduces the chances of having to issue a correction notice. For example, identifying 3 lots of shell beads means that no matter the exact number of beads present, the count would stand, whereas identifying exactly 1,960 shell beads in a notice would mean that if additional (or fewer) beads were located before repatriation occurs, a correction notice would be required because the number of objects would have changed.
The Department proposes to require a new document to complete the repatriation of human remains and associated funerary objects to a requestor. A written repatriation statement would be sent to and would identify all requestors in the case of joint requests. In accordance with the recommendation by the Government Accountability Office in a 2010 report on the implementation of the Act, a copy of the repatriation statement would also be sent to the Manager, National NAGPRA Program.
The Department proposes a new process for transfer or reinterment of human remains and associated funerary objects. This provision would apply in limited circumstances where there is no connection between the human remains and associated funerary objects and any Indian Tribe or NHO. Under such circumstances, a museum or Federal agency would have the discretion to agree to transfer the human remains and associated funerary objects to an Indian Tribe, NHO, or Indian group, or to reinter the human remains and associated funerary objects. In the existing regulations at § 10.10(g)(2)(ii), this same process is available to museums and Federal agencies but requires a recommendation from the Review Committee and the concurrence of the Secretary. The new provision would require publication of a notice and a repatriation statement but would eliminate the costly and burdensome process of making a request to the Review Committee.
Table 16 shows how the Department proposes to reorganize the existing regulatory requirements for an inventory of human remains and associated funerary object.
This section of the proposed rule would implement the requirements of the Act regarding the process for the Secretary to assess civil penalties against any museum that fails to comply with the requirements of the Act (25 U.S.C. 3007). The Department proposes several revisions to the existing regulations at § 10.12 to clarify and streamline the process for assessing civil penalties. As noted in the proposed rule, Federal agencies are not subject to the assessment of civil penalties. Federal law does include, however, ways to allege that a Federal agency has failed to comply with the requirements of the Act or the regulations (or any other Federal law or regulation). The most broadly applicable way to allege that a Federal agency has failed to comply is to send an allegation to the head of the appropriate Federal agency or to the Federal agency's Office of the Inspector General. Assuming that the alleged failure to comply is a final agency action (see proposed § 10.1(i)), the failure to comply could also be the subject of a lawsuit under the Administrative Procedure Act (5 U.S.C. 704).
The Department proposes to remove from the existing regulations at § 10.12(b) the definition of “failure to comply.” Consistent with the Act, the proposed revisions would provide that a museum that fails to comply with any provision of the Act or Subpart C of the regulations has failed to comply. As under the existing regulations, each instance of failure to comply would constitute a separate violation. The proposed revisions include what factors would be relevant for determining the number of separate violations.
For example, if a museum fails to include information regarding the known presence of a potentially hazardous substance used to treat the human remains or associated funerary objects in an itemized list, the number of separate violations committed by the museum may be calculated by determining the number of lineal descendants, Indian Tribes, or NHOs named in an allegation and determined to be aggrieved by this failure to comply. Alternatively, if a museum completes the repatriation of human remains and associated funerary objects without submitting a notice of inventory completion, the number of separate violations may be calculated by determining the number of human remains and associated funerary objects involved in this failure to comply.
The Department proposes to consolidate the dual hearing process in the existing regulations—which involve an opportunity to contest both a substantiated failure to comply and a penalty assessment in separate hearings—into one single hearing. The bifurcated hearing process adopted in 2003 (68 FR 16354, April 3, 2003) is not legally required. The Act uses identical language (25 U.S.C. 3007(a)) to the Administrative Procedure Act (APA) (5 U.S.C. 554(a)). This reflects Congressional intent that civil penalties be adjudicated under similar procedural requirements to the APA and not a unique approach. Numerous government agencies have complied with Section 554(a) by conducting single hearing adjudications, which have withstood legal challenges for procedural due process. Not only does the single hearing process satisfy the Administrative Procedure Act's identical procedural requirements (5 U.S.C. 554(a)), but it would also provide greater efficiencies for all parties and quicker resolution of cases.
The Department proposes to change the calculation of the base penalty amount for each instance of failure to comply. Under the existing regulations, the base penalty amount for each separate violation is calculated as the lesser of two amounts: 0.25 percent of the museum's annual budget or $7,475 (adjusted annually for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74)). The proposed revision would require that the penalty amount be calculated using only $7,475 (adjusted annually for inflation) as the base penalty amount.
The Act, the existing regulations, and the proposed revisions permit the Secretary to increase the penalty amount after considering different factors, including an aggrieved party's economic and non-economic damages. For example, economic damages could be an Indian Tribe's expenditures for an attorney or other staff to prepare, review, and file documents to compel the museum to comply. For another example, non-economic damages could be a traditional religious leader's inability to conduct a certain ceremony because of the museum's failure to comply.
In response to consultation with Indian Tribes and NHOs, the Department proposes to include an additional factor for increasing the penalty amount based on ceremonial or cultural value of the human remains or cultural items involved, as identified by any aggrieved lineal descendant, Indian Tribe, or NHO. The Secretary also may reduce the penalty amount if the
The proposed revisions describe the actions a museum may take upon receipt of a notice of failure to comply and include the option for a museum to file a petition for relief in the existing regulations at § 10.12(i)(3). The proposed revisions also describe the actions a museum may take upon receipt of a notice of assessment and include the option for a museum to request a hearing to contest the failure to comply or the penalty assessment in the existing regulations at §§ 10.12(f)(2) and (i)(4).
The proposed revisions would require a museum to exhaust all administrative remedies under this section prior to seeking judicial review of the final administrative decision of the Secretary. This section would also make clear that no decision would be considered to constitute final agency action subject to judicial review during the time the decision is subject to review under this section of the regulations. The proposed revisions contain provisions that would allow for the assessment of an additional daily penalty amount of $1,496 per day, subject to annual adjustments based on inflation, and would include the Department's options of instituting legal action to recover penalties and pursuing other available legal or administrative remedies.
Table 17 shows how the Department proposes to reorganize the existing regulatory requirements for the assessment of civil penalties on any museum that fails to comply with the requirements of the Act.
This section of the proposed rule would implement the requirements of the Act regarding the Federal Advisory Review Committee (25 U.S.C. 3006). The Department proposes to clarify the existing provisions at §§ 10.16 and 10.17 and add new provisions to clarify the responsibilities of the Review Committee.
In response to consultation with Indian Tribes and NHOs, the Department proposes to add a requirement that recommendations made by the Review Committee will be published in the
The Department proposes to add new provisions to clarify which entities may make nominations to the Secretary.
Under the Act (25 U.S.C. 3006(b)(1)(B)), Congress did not provide any additional requirements for nominators beyond “national museum organizations and scientific organizations. The proposed addition seeks to clarify these requirements by defining what national museum organizations and national scientific organizations are, as recommended by the Government Accountability Office in a 2010 report on the implementation of the Act. As many national organizations have an abundance of subsidiary organizations, the proposed addition requires nominations be submitted only through a parent organization.
The proposed revisions describe the finding of fact or dispute function of the Review Committee and remove the references in the existing regulations to informal and formal dispute resolution. The proposed definition of “an affected party” was drawn from the Review Committee's Dispute Procedures. The proposed revisions seek to clarify the distinction between findings of fact and disputes as well as to provide the options for the Review Committee's recommendation.
Table 18 shows how the Department proposes to reorganize the existing regulatory requirements for the Review Committee.
The Department will conduct consultation sessions with Indian Tribes virtually during the comment period. The Department will announce the exact meeting dates and times of the consultation sessions, once scheduled, on
One goal of the proposed regulatory revisions is to provide specific timelines for museums and Federal agencies to facilitate the required repatriation. The Department does not intend to impose timeframes on lineal descendants, Indian Tribes, or NHOs to request disposition or repatriation. The Department requests feedback from Indian Tribes and NHOs on whether this goal has been achieved and how to further allow Indian Tribes and NHOs flexibility and discretion with regard to the proposed regulatory revisions and, in particular, the new responsibilities under Subpart B and the proposed deadlines under Subpart C.
The Department will also proactively contact and consult with a subset of smaller Indian Tribes and NHOs to ensure that they anticipate sufficient opportunity under the proposed regulatory changes in Subpart C to submit requests for repatriation of the human remains or cultural items anticipated to become available within three years of a final rule. Specifically, Indian Tribes and NHOs are currently responsible for submitting a request to consult, consulting, submitting a request for repatriation, and, in some cases, requesting transfer of human remains or cultural items. Under the proposed regulations, Indian Tribes and NHOs have the same responsibilities, but are likely to increase the number of annual responses for each responsibility, especially in submitting requests for repatriation. As stated in § 10.1(g), failure to make a claim for disposition or a request for repatriation of human remains or cultural items is deemed an irrevocable waiver of any right to make a claim or a request.
The Department will also proactively contact and consult with Indian Tribes and NHOs to ensure that they anticipate sufficient opportunity under the proposed regulatory changes to take on new responsibilities under Subpart B. Specifically, Indian Tribes and NHOs are currently responsible for responding to a discovery on their Tribal lands, consenting to an excavation on Tribal lands, and submitting a claim for disposition on Federal lands. Under the proposed regulations, Indian Tribes and NHOs will also be responsible for delegating or accepting responsibilities on Tribal lands, submitting a request to consult on Federal lands, sending or completing a disposition statement on Tribal lands, and requesting transfer of unclaimed human remains or cultural items on Federal lands.
Another goal of the proposed regulatory revisions is to improve efficiency in meeting the requirements of the systematic process for repatriation under Subpart C. The Department requests feedback from Indian Tribes, NHOs, museums, and Federal agencies on whether this goal has been achieved and how to ensure the step-by-step process for repatriation is streamlined and simplified by the proposed regulatory revisions under Subpart C.
The Department will proactively contact and engage with a subset of affected entities, which will include Indian Tribes, NHOs, museums, and Federal agencies, during the comment period to understand if the proposed regulatory revisions could impact these entities' capacity and resources. Under
In particular, the Department anticipates that the human remains of 117,000 Native American individuals currently unable to be repatriated would become available for repatriation within two and a half years of the effective date of a final rule, a substantial increase from the 84,000 individuals repatriated in the almost 32 years since the passage of NAGPRA. At this time, the Department is not aware of any capacity and resource limitations that would prevent these entities from completing the new requirement to update inventories, submit requests to consult, engage in consultation, and publish notices following the effective date of a final rule.
In addition to the public engagement and outreach discussed above, the Department solicits comment from the public on the entirety of this proposed rule. The Department is interested in receiving comments from the public on the cost-benefit and regulatory flexibility analyses, including the conclusions about the expected costs of complying with the proposed rule. In particular, the Department is interested in responses to the following questions:
a. For each regulatory requirement, does the estimated time per response seem reasonable? If not, what range of time per response would be more reasonable for a specific regulatory requirement? For example, Federal agencies and museums are required to initiate and conduct consultation under both the existing regulations and the proposed regulations. We estimate the time per response ranges from ten hours to 300 hours, depending on the size and complexity of the consultation, for a median of 155 hours.
b. For Subpart B, is the estimated number of annual discoveries on Federal or Tribal lands reasonable? We used the average number of notices on Federal lands over the last three years, but we have no data on the number of discoveries on Tribal lands to inform this estimate.
c. For Subpart C, is the estimated number of museums and Federal agencies required to update inventory data under the proposed regulations reasonable? We estimate 414 museums and 19 Federal agencies will be required to update inventories within three years after promulgation of a final rule. We estimate that 33% of those museums and Federal agencies will submit inventory updates each year for three years. We assume fewer inventory records will require less time to update. We assume museums previously prepared and submitted inventories in accordance with the existing regulations and an update to that inventory requires less time than submission of a new inventory. We estimate the time per response will range from less than one hour to 100 hours, depending on the size and complexity of the update, for a median of 50.25 hours.
d. For Subpart C, many museums and Federal agencies update inventories at their own discretion, going beyond what is required by the Act and the existing regulations, which only requires use of “information possessed by such museum or Federal agency” (25 U.S.C. 3003(a)). Given the potential expense of more extensive studies not required by the Act or the revised regulations, how should the Department account for these costs in this rulemaking? We also request public data about the potential costs of updating inventories under the revised regulations.
e. For Subpart C, is the estimated number of museums required to report on Federal holdings or collections reasonable? We estimate the number of museums required to submit statements is 5% of all museums that previously submitted information under the existing regulations.
f. Is the estimated number of competing claims for disposition or competing requests for repatriation reasonable?
g. Using data on implementation since 2012, we estimate it will take an additional 26 years to complete the consultation and notification process for all 117,000 Native American human remains currently pending in the existing regulatory framework. Is this 26-year time horizon reasonable? Will the proposed regulatory requirements result in a change in consultation activities per year, and if so, how should the Department account for the change in costs to Indian Tribes or NHOs for engaging in consultation?
The Department will use all received feedback to inform a final rule and may make changes to a final rule based on received feedback that is within the scope of this proposed rule.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in OMB will review all significant regulatory actions. OIRA has determined that this rule is a significant regulatory action.
Executive Order 13563 reaffirms the principles of Executive 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This proposed rule is expected to advance racial equity in agency actions and programs, in accordance with the Executive Order 13985.
This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local or tribal government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in Section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of § 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of § 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified direct Tribal implications. Accordingly, we have developed this proposed rule after consulting with federally recognized Indian Tribes as detailed in this preamble. In addition, we developed this proposed rule in consultation with the Native American Graves Protection and Repatriation Review Committee, which includes members nominated by Indian Tribes.
The Paperwork Reduction Act (PRA) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a “collection of information,” unless it displays a currently valid OMB control number. Collections of information include any request or requirement that persons obtain, maintain, retain, or report information to an agency, or disclose information to a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).These proposed regulations contains existing and new information collection requirements that are subject to review by OMB under the PRA. OMB previously reviewed and approved information collection related to 43 CFR part 10 and assigned the following OMB control number 1024-0144 (expires 4/30/2025).
The information collection activities in this proposed rule are described below along with estimates of the annual burdens. These activities, along with annual burden estimates, do not include activities that are considered usual and customary industry practices. Included in the burden estimates are the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection requirements.
The Department of the Interior requests comment on any aspect of this information collection, including:
a. Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
b. The accuracy of the estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected; and
d. How the agency might minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Subpart A—General does not contain any information collection requirements subject to the PRA. References to written documents in this Subpart refer to the specific information collection requirements in the three subparts below.
Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands contains six information collection requirements subject to the PRA. On Federal or Tribal lands, any person who knows or has reason to know of the discovery of human remains or cultural items must provide specified information to third parties. On Federal lands, an Indian Tribe or NHO may submit a claim for disposition by disclosing specified information to third parties. On Tribal lands, an Indian Tribe or NHO must maintain specified records and in one instance, disclose specified information to third parties.
Subpart C—Repatriation of Human Remains or Cultural Items by Museums or Federal Agencies contains 19 information collection requirements subject to the PRA. State and local governments, universities, and museums that receive Federal funds and have possession or control of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony must submit information to the Federal government, maintain specified records, and disclose specified information to third parties. Lineal descendants, Indian Tribes, or NHOs may submit a request for repatriation by disclosing specified information to third parties. Any person alleging a failure to comply may voluntarily submit information to the Federal government. Museums may respond to a civil penalty action by submitting information to the Federal government.
In the proposed regulations, Subpart D—Review Committee contains one information collection requirements subject to the PRA. Any affected party may voluntarily submit information to the Federal government.
Lineal descendants, Indian Tribes, and Native Hawaiian organizations may take certain actions that are not information collections subject to the PRA. Written documents requesting to consult are acknowledgements that entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the consultation.
Federal agencies and the Department of Hawaiian Home Lands (DHHL) must take certain actions that are not information collections subject to the PRA. The Hawaiian Homes Commission Act, 1920 (HHCA), 42 Stat. 108, is a cooperative federalism statute, a compound of interdependent Federal and State law that establishes a Federal law framework but also provides for implementation through State law (see 81 FR 29777 and 29787, May 13, 2016, 43 CFR 47 and 48, Land Exchange Procedures and Procedures to Amend the Hawaiian Homes Commission Act, 1920). These written documents are required by employees of the Federal government or DHHL when acting within the scope of their employment.
Indian Tribes, Native Hawaiian organizations, and Indian groups that are not federally recognized may take certain actions to request transfer of human remains or cultural items that are not information collections subject to the PRA. These actions impact fewer than ten persons and occur less often than annually.
Indian Tribes, Native Hawaiian organizations, traditional religious leaders, national museum organizations, and national scientific organizations may take certain actions that are not information collections subject to the PRA. These actions are generally solicited through a notice in the
The Department has identified 26 information collections in the proposed regulations. In total, we estimate that we will receive, annually, 2,212 responses totaling 35,878 annual hour burden. We estimate the annual dollar value is $2,304,481 (rounded). We estimate the frequency of response for each of the information collections is once per year, but the number of respondents may not be the same as the number of responses, depending on the type of information collected. In our estimate, we have only used the number of responses to simplify our estimate and remain consistent across the types of information collected. For some information collections, the time per response varies widely because of differences in activity, size, and complexity.
Written comments and suggestions on the information collection requirements should be submitted by the date specified above in
To request additional information about this ICR, contact Melanie O'Brien, Manager, National NAGPRA Program by email at
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because the rule is covered by a categorical exclusion under 43 CFR 46.210(i): “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the National Environmental Policy Act.
This rulemaking is not a significant energy action under the definition in Executive Order 13211; the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the rule has not otherwise been designated by the Administrator of OIRA as a significant energy action. A Statement of Energy Effects in not required.
We are required by Executive Orders 12866 (§ 1(b)(12)) and 13563 (§ 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) 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
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 may 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.
For access to the docket to read background documents or comments received, go to
This proposed rule was prepared by staff of the National NAGPRA Program, National Park Service; Office of Regulations and Special Park Uses, National Park Service; Office of Native Hawaiian Relations; Office of Regulatory Affairs & Collaborative Action, Office of the Assistant Secretary—Indian Affairs;
Administrative practice and procedure, Alaska, Cemeteries, Citizenship and naturalization, Colleges and universities, Hawaiian Natives, Historic preservation, Human remains, Indians, Indians-claims, Indians-law, Indians-lands, Museums, Penalties, Public lands, Reporting and recordkeeping requirements, Treaties.
25 U.S.C. 3001
(a)
(b)
(1) Protect Human Remains or Cultural Items on Federal or Tribal Lands in the event of a discovery or excavation after November 16, 1990; and
(2) Repatriate Human Remains or Cultural Items in the possession or control of:
(i) Any Federal agency, regardless of the physical location of the holding or collection; or
(ii) Any institution or State or local government agency (including any institution of higher learning) within the United States that receives Federal funds, regardless of the physical location of the holding or collection.
(c)
(d)
(1) Consult, collaborate, and obtain consent on the appropriate treatment, care, or handling of human remains or cultural items;
(2) Incorporate and accommodate customs, traditions, and Native American traditional knowledge in practices or treatments of human remains or cultural items; and
(3) Limit access to and research on human remains or cultural items.
(e)
(1) The written documents must be sent by:
(i) Email, with proof of receipt,
(ii) Personal delivery with proof of delivery date,
(iii) Private delivery service with proof of date sent, or
(iv) Certified mail.
(2) Communication to the Manager, National NAGPRA Program, should be sent electronically to
(f)
(1) Days mean business days,
(2) Written documents are deemed timely based on the date sent, not the date received.
(3) Parties sending or receiving written documents under these regulations must document the date sent or date received, as appropriate, when these regulations require those parties to act based on the date sent or date received.
(g)
(h)
(i)
(1) A final determination making the Act or this part inapplicable;
(2) A final denial of a claim for disposition or a request for repatriation; and
(3) A final disposition or repatriation determination.
(j)
(1) A treaty sent by the President to the United States Senate for ratification;
(2) An Act passed by Congress;
(3) An Executive Order;
(4) A treaty between a foreign or colonial government and an Indian Tribe signed before the establishment of the United States Government or prior to the land becoming incorporated in the United States;
(5) Another Federal document or foreign government document providing information that reasonably shows aboriginal occupation; or
(6) Intertribal treaties, diplomatic agreements, and bilateral accords between and among Indian Tribes.
(1) The national park system,
(2) The national wildlife refuge system,
(3) The national forest system, and
(4) All other lands the fee title to which is held by the United States Government, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution.
(2) Any lands other than Tribal lands that are held by the United States Government in trust for an individual Indian or lands owned by an individual Indian and subject to a restriction on alienation by the United States Government; and
(3) Any lands subject to a statutory restriction, lease, easement, agreement, or similar arrangement containing terms that grant to the United States Government indicia of control over those lands.
(1)
(2)
(i) Related to human remains but the human remains were not removed or the location of the human remain is unknown,
(ii) Related to specific individuals or families,
(iii) Removed from a specific burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization, or
(iv) Removed from a specific area where a burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization is known to have existed, but the burial site is no longer extant.
(1) Academic interest;
(2) Accession;
(3) Catalog;
(4) Comparison;
(5) Conservation;
(6) Education;
(7) Examination;
(8) Exhibition;
(9) Forensic purposes;
(10) Interpretation;
(11) Preservation;
(12) Public benefit;
(13) Research;
(14) Scientific interest; or
(15) Study.
(1) Human remains incorporated into a funerary object, sacred object, or object of cultural patrimony are considered part of the cultural item rather than human remains.
(2) Human remains incorporated into an object or item that is not a funerary object, sacred object, or object of cultural patrimony are considered human remains.
(1) A living person tracing his or her ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to a known individual whose human remains, funerary objects, or sacred objects are subject to this part; or
(2) A living person tracing his or her ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to all the known individuals represented by comingled human remains (example: the human remains of two individuals have been comingled, and a living person may trace his or her ancestry directly to both of the deceased individuals).
(1) A tribe is an Indian Tribe.
(2) A people comprise the entire body of persons who constitute a community, tribe, nation, or other group by virtue of a common culture, history, religion, language, race, ethnicity, or similar feature. The Native Hawaiian Community is a “people.”
(3) A culture comprises the characteristic features of everyday existence shared by people in a place or time.
(1) Serves and represents the interests of Native Hawaiians, who are descendants of the indigenous people who, before 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai`i;
(2) Has as a primary and stated purpose the provision of services to Native Hawaiians; and
(3) Has expertise in Native Hawaiian affairs, and includes but is not limited to:
(i) The Office of Hawaiian Affairs established by the constitution of the State of Hawai`i;
(ii) Native Hawaiian organizations (including `ohana) who are registered with the Secretary's Office of Native Hawaiian Relations; and
(iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations and Homestead Associations as defined under 43 CFR 47.10.
(1) Cannot or could not be alienated, appropriated, or conveyed by any person, including its caretaker, regardless of whether the person is a member of the group, and
(2) Must have been considered inalienable by the group at the time the object was separated from the group.
`
(1) An individual, partnership, corporation, trust, institution, association, or any other private entity; or
(2) Any representative, official, employee, agent, department, or instrumentality of the United States Government or of any Indian Tribe or Native Hawaiian organization, or of any State or subdivision of a State.
(1) An unassociated funerary object, a sacred object, or an object of cultural patrimony from an Indian Tribe or Native Hawaiian organization with the voluntary consent of a person or group with authority to alienate the object; or
(2) Human remains and associated funerary objects which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or, when no next of kin is ascertainable, the official governing body of the appropriate Indian Tribe or Native Hawaiian organization.
(1) All lands that are within the exterior boundaries of any Indian reservation;
(2) All lands that are dependent Indian communities; and
(3) All lands administered by the Department of Hawaiian Home Lands (DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 108) and Section 4 of the Act to Provide for the Admission of the State of Hawai`i into the Union (73 Stat. 4), including “available lands” and “Hawaiian home lands.”
Throughout this part, affiliation ensures that disposition or repatriation of human remains or cultural items is based on a reasonable connection to an Indian Tribe or Native Hawaiian organization. Affiliation is established by identifying the cultural and geographical affiliation of the human remains or cultural items using this section.
(a)
(1) Information. One or more of the following equally relevant types of information may be used to identify cultural affiliation:
(i) Anthropological;
(ii) Archaeological;
(iii) Biological;
(iv) Folkloric;
(v) Geographical;
(vi) Historical;
(vii) Kinship;
(viii) Linguistic;
(ix) Oral Traditional; or
(x) Other relevant information or expert opinion, including Native American traditional knowledge which alone may be sufficient to identify cultural affiliation.
(2) Criteria. Using the information available, each of the following criteria for cultural affiliation must be identified:
(i) One or more earlier groups connected to the human remains or cultural items;
(ii) One or more Indian Tribes or Native Hawaiian organizations; and
(iii) A relationship of shared group identity between the earlier group and the Indian Tribe or Native Hawaiian organization reasonably traced through time.
(3) Multiple cultural affiliations. An identifiable earlier group may have a relationship to more than one Indian Tribe or Native Hawaiian organization. As two or more earlier groups may be connected to human remains or cultural items, a relationship may be reasonably traced to two or more Indian Tribes or Native Hawaiian organizations that do not themselves have a shared group identity.
(b)
(1) Information. Existing records, inventories, catalogues, relevant studies, or other pertinent data may be used to identify the:
(i) Geographic origin of the human remains or cultural items and
(ii) Basic facts surrounding the acquisition and accession of the human remains or cultural items.
(2) Criteria. Using the information available, each of the following criteria for geographical affiliation must be identified:
(i) A geographic area connected to the human remains or cultural items;
(ii) One or more Indian Tribes or Native Hawaiian organizations; and
(iii) A relationship between the geographic area and the Indian Tribe or Native Hawaiian organization, based on the identification of the geographic area as:
(A) The Tribal lands of the Indian Tribe or Native Hawaiian organization,
(B) The adjudicated aboriginal land of the Indian Tribe, or
(C) The acknowledged aboriginal land of the Indian Tribe.
(3) Multiple geographical affiliations. A geographic area may have a relationship to more than one Indian Tribe or Native Hawaiian organization. Information used for geographical affiliation may provide information sufficient to identify cultural affiliation under paragraph (a) of this section but must not be used to limit geographical affiliation.
(c)
(1) Single claims or requests. Claims or requests for joint disposition or joint repatriation of human remains or cultural items are considered a single claim or request and not competing claims or requests. Notices and statements for joint disposition or joint repatriation of human remains or cultural items required under this part must identify all joint requestors.
(2) Competing claims or requests. Under §§ 10.7, 10.9, and 10.10, when there are competing claims for disposition or competing requests for repatriation of human remains or cultural items, it may be necessary to determine the Indian Tribe or Native Hawaiian organization with the closest affiliation under paragraph (d) of this section.
(d)
(i) The Indian Tribe whose cultural affiliation is clearly identified.
(ii) The Indian Tribe whose cultural affiliation is not clearly identified but is reasonably identified by the information available, including the circumstances surrounding the acquisition of the human remains or cultural items.
(iii) The Indian Tribe whose geographical affiliation is based on the Tribal lands of the Indian Tribe.
(iv) The Indian Tribe whose geographical affiliation is based on the adjudicated aboriginal land of the Indian Tribe.
(v) The Indian Tribe whose geographical affiliation is based on the acknowledged aboriginal land of the Indian Tribe.
(2) The Native Hawaiian organization with the closest cultural affiliation, in the following order, is:
(i) An `ohana that can trace an unbroken connection of named individuals to one or more of the human remains or cultural items, but not necessarily to all of the human remains or cultural items from a specific site.
(ii) An `ohana that can trace a relationship to the ahupua`a where the human remains or cultural items were removed and a direct kinship to one or more of the human remains or cultural items, but not necessarily an unbroken connection of named individuals.
(iii) An organization with affiliation only to the earlier occupants of the ahupua`a where the human remains or cultural items were removed, and not to the earlier occupants of any other ahupua`a.
(iv) An organization with affiliation to either:
(A) The earlier occupants of the ahupua`a where the human remains or cultural items were removed, as well as to the earlier occupants of other ahupua`a on the same island, but not to the earlier occupants of all ahupua`a on that island, or to the earlier occupants of any other island of the Hawaiian archipelago, or
(B) The earlier occupants of another island who accessed the ahupua`a where the human remains or cultural items were removed for traditional or customary practices and were buried there.
(v) An organization with affiliation to the earlier occupants of all ahupua`a on the island where the human remains or cultural items were removed, but not to the earlier occupants of any other island of the Hawaiian archipelago.
(vi) An organization with affiliation to the earlier occupants of more than one island in the Hawaiian archipelago that has been in continuous existence from a date prior to 1893.
(vii) Any other Native Hawaiian organization with affiliation.
Whenever an Indian Tribe, Native Hawaiian organization, Federal agency, or the State of Hawai`i Department of Hawaiian Home Lands (DHHL) has responsibility for human remains or cultural items on Federal or Tribal lands, it must comply with the requirements of this subpart. To ensure compliance with the Act, any permit, license, lease, right-of-way, or other authorization issued by an Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL for an activity on Federal or Tribal lands must include a requirement that the person responsible for the activity comply with § 10.5 upon the discovery of human remains or cultural items. Prior to any excavation of human remains or cultural items on Federal or Tribal lands, an Indian Tribe, Native Hawaiian organization, Federal
(a)
(b)
(1)
(i) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential affiliation.
(ii) An invitation to consult must be in writing and must include:
(A) A description of the planned activity and its general location;
(B) The names of all identified consulting parties; and
(C) A proposed timeline and method for consultation.
(iii) Any consulting party, regardless of whether the party has received an invitation to consult, must submit a written request to consult. A written request to consult may be submitted to the appropriate official at any time.
(2)
(i) In the response to the requesting party, the appropriate official must ask a requesting party for the following information, if not already provided:
(A) Recommendations on the proposed timeline and method for consultation; and
(B) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leaders, and known lineal descendant who should participate in consultation.
(ii) The consultation process must seek consensus, to the maximum extent possible, on the content of the plan of action.
(iii) The appropriate official must prepare a record of consultation that includes the effort made to seek consensus. If recommendations by requesting parties are not possible, the record of consultation must describe efforts to identify a mutually agreeable alternative. The appropriate official must record the concurrence, disagreement, or nonresponse of the requesting parties to the plan of action.
(3)
(i) A description of the planned activity and its general location;
(ii) A list of all consulting parties identified under paragraph (b)(1) of this section;
(iii) A record of consultation under paragraph (b)(2) of this section;
(iv) The preference of requesting parties for:
(A) Stabilizing and covering human remains or cultural items in situ;
(B) Protecting and relocating human remains or cultural items, if removed; or
(C) Providing the appropriate treatment, care, or handling of human remains or cultural items; and
(v) The timeline and method for:
(A) Informing all identified consulting parties of a discovery;
(B) Evaluating the potential need for an excavation; and
(C) Completing the disposition, to include publication of a notice of intended disposition, under § 10.7.
(c)
(1) Be developed in consultation with any Indian Tribe or Native Hawaiian organization identified under paragraph (b)(1) of this section and requesting to consult under paragraph (b)(2) of this section;
(2) Include, at minimum, a plan of action under paragraph (b)(3) of this section;
(3) Be consented to by a majority of requesting parties or lineal descendants identified under paragraph (b)(2) of this section. Evidence of consent will be by the authorized representative's signature on the agreement or by official correspondence to the Federal agency or DHHL; and
(4) Be signed by the appropriate official for the Federal agency or DHHL.
(d)
When a discovery of human remains or cultural items on Federal or Tribal lands occurs, any person who knows or has reason to know of the discovery must inform the appropriate official for the responsible Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL. For any planned activity on Federal lands in the United States or on Tribal lands in Hawai`i that is likely to result in a discovery of human remains or cultural items, the appropriate official must, in consultation with Indian Tribes and Native Hawaiian organizations, prepare, approve, and sign a plan of action under § 10.4(b), unless the discovery is already covered by a signed comprehensive agreement under § 10.4(c).
(a)
(b)
(1) Immediately stop all activity around the discovery;
(2) Immediately report the discovery to the appropriate official and any additional point of contact shown in Table 1 of this section;
(3) Make a reasonable effort to secure and protect the human remains or cultural items, including, as appropriate, stabilizing and covering the human remains or cultural items;
(4) No later than 24 hours after the discovery, send written documentation of the discovery to the appropriate official and any additional point of contact stating:
(i) The general location and contents of the discovery,
(ii) The activity related to the discovery,
(iii) The steps taken to secure and protect the human remains or cultural items, and
(iv) Confirmation that all activity around the discovery has stopped and will not resume until the date in a written certification issued under paragraph (e) of this section.
(c)
(1) The appropriate official must make a written record showing a reasonable effort to:
(i) Take steps to secure and protect the human remains or cultural items;
(ii) Verify that any activity around the discovery has stopped; and
(iii) Report the discovery to any additional point of contact shown in Table 1 of this section.
(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for the discovery to the appropriate official for the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the appropriate official for the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (d) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for discoveries on its Tribal lands and then must respond to any discovery under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for discoveries, the appropriate official for DHHL is responsible for completing the requirements in paragraph (d) of this section for any discoveries on those Tribal lands of an NHO.
(d)
(1) The appropriate official signed a plan of action under § 10.4(b);
(2) The appropriate official signed a comprehensive agreement under § 10.4(c); or
(3) A Native Hawaiian organization agreed in writing to be responsible for discoveries on its Tribal lands under paragraph (c)(3) of this section.
(e)
(1) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information to the extent of applicable law;
(2) Instructions for protecting, stabilizing, or covering the human remains or cultural items, if appropriate;
(3) A proposed timeline and method for evaluating the potential need for and authorization of an excavation of the human remains or cultural items, if applicable; and
(4) The date (no later than 30 days after the date of the written certification) on which lawful activity may resume around the discovery.
When an excavation of human remains or cultural items on Federal or Tribal lands is needed, the appropriate official may authorize the excavation only after complying with this section. The appropriate official must take reasonable steps to evaluate the potential need for an excavation of human remains or cultural items. A permit under Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is on Federal or Tribal lands that are also ARPA Indian lands or ARPA Public lands, and there is no applicable permit exception or exemption under the ARPA uniform regulations at 18 CFR 1312, 32 CFR 229, 36 CFR 296, or 43 CFR 7.
(a)
(1) At minimum, the written authorization must document:
(i) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items; and
(ii) Any permit that the Indian Tribe or Native Hawaiian organization legally requires.
(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for authorizing the excavation to the appropriate official for the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the appropriate official for the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (b) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for excavations on its Tribal lands and then must provide written authorizations under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for excavations, the appropriate official for DHHL is responsible for completing the requirements in paragraph (b) of this section for any excavations on those Tribal lands of an NHO.
(b)
(1) Prior to authorizing an excavation, the appropriate official, in consultation with Indian Tribes and Native Hawaiian organizations, must prepare, approve, and sign a plan of action under § 10.4(b). To the maximum extent possible, the appropriate official must carry out the plan of action for any human remains or cultural items. This requirement does not apply if prior to authorizing the excavation:
(i) The appropriate official signed a plan of action under § 10.4(b);
(ii) The appropriate official signed a comprehensive agreement under § 10.4(c); or
(iii) A Native Hawaiian organization agreed in writing to be responsible for excavations on its Tribal lands under paragraph (a)(3) of this section.
(2) At minimum, the written authorization must document:
(i) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items; and
(ii) Any permit that the Federal agency or DHHL legally requires.
When human remains or cultural items are removed from Federal or Tribal lands, as soon as possible (but no later than one year) after the discovery or excavation of the human remains or cultural items, the appropriate official must determine the lineal descendant, Indian Tribe, or Native Hawaiian organization that has priority for disposition of human remains or cultural items using this section. On Federal lands in the United States or on Tribal lands in Hawai`i, when the appropriate official cannot reasonably determine any Indian Tribe or Native Hawaiian organization with priority for disposition of human remains or cultural items, the appropriate official must report the human remains or cultural items as unclaimed under paragraph (e) of this section.
(a)
(1) The known lineal descendants, if any, for human remains and associated funerary objects;
(2) The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items originated;
(3) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(d); or
(4) For human remains or cultural items from adjudicated aboriginal land, the Indian Tribe with the strongest relationship to the human remains or cultural items who makes a claim for disposition, which is:
(i) The adjudicated aboriginal land Indian Tribe who claims the human remains or cultural items, or
(ii) A different Indian Tribe who claims the human remains or cultural items and shows, by a preponderance of the evidence, a stronger cultural relationship to the human remains or cultural items than the adjudicated aboriginal land Indian Tribe.
(b)
(1) Before sending the disposition statement, the appropriate official must consult with the lineal descendant on the care, custody, and physical transfer of the human remains and associated funerary objects.
(2) After sending the disposition statement, the appropriate official must:
(i) Document any physical transfer by recording the contents, recipient, and method of delivery; and
(ii) Protect sensitive information, as identified by the lineal descendant, from disclosure to the general public to the extent consistent with applicable law;
(3) After the disposition statement is sent, nothing in the Act or this part:
(i) Limits the authority of the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL to enter into any agreement with the lineal descendant concerning the care or custody of the human remains and associated funerary objects, or
(ii) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant.
(c)
(1) The written disposition statement must acknowledge and recognize:
(i) A lineal descendant could not be ascertained and
(ii) The Indian Tribe or Native Hawaiian organization has control or ownership of the human remains or cultural items.
(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for disposition of human remains or cultural items to the appropriate official for the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the appropriate official for the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (d) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for disposition of human remains or cultural items from its Tribal lands and then must provide written disposition statements under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for dispositions, the appropriate official for DHHL is responsible for completing the requirements in paragraph (d) of this section for any dispositions from those Tribal lands of an NHO.
(4) After the disposition statement is complete, nothing in the Act or this part:
(i) Limits the authority of a Federal agency to enter into any agreement with the Indian Tribe or Native Hawaiian organization concerning the care or custody of the human remains or cultural items,
(ii) Limits any procedural or substantive right which may otherwise be secured to the Indian Tribe or Native Hawaiian organization, or
(iii) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its control or ownership of human remains, funerary objects, or sacred objects.
(d) O
(1)
(i) A description of the human remains or cultural items including the general location and date of discovery or excavation;
(ii) The name of each Indian Tribe or Native Hawaiian organization identified as having priority for disposition of the human remains or cultural items and a brief abstract of the information used to make that identification; and
(iii) A request that if the Indian Tribe or Native Hawaiian organization wishes to submit a claim for disposition of the human remains or cultural items, it should do so in writing no later than 30 days after publication of a notice in the
(2)
(i) A notice of intended disposition must conform to the mandatory format of the
(A) A brief description of the human remains or cultural items, including the county and state where the human remains or cultural items were removed;
(B) The identity of the human remains or cultural items specifically as human remains, associated funerary objects, unassociated funerary objects, sacred objects, objects of cultural patrimony, or both sacred objects and objects of cultural patrimony, and a brief abstract of the information used to make that identification;
(C) The name of each Indian Tribe or Native Hawaiian organization with priority for disposition of the human remains or cultural items and a brief abstract of the information used to make that identification;
(D) The name, phone number, email address, and mailing address for the appropriate official who is responsible for receiving written claims for disposition of the human remains or cultural items;
(E) The date (to be calculated by the
(F) The date (to be calculated by the
(ii) No later than 15 days after receiving a notice of intended disposition, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the
(B) Return to the Federal agency or DHHL any submission that does not meet the requirements under paragraph (d)(2)(i) of this section.
(3)
(i) A claim for disposition of human remains or cultural items must be received by the appropriate official before the appropriate official sends a disposition statement for the human remains or cultural items to a claimant under paragraph (d)(5) of this section or the transfer or reinterment of the human remains or cultural items under paragraph (e)(4) of this section. Any claim for disposition received by the appropriate official no later than 30 days after publication of a notice must be considered. A claim for disposition received by the appropriate official before the publication of the notice of
(ii) Claims from two or more Indian Tribes or Native Hawaiian organizations who agree to joint disposition of the human remains or cultural items are considered a single claim and not competing claims.
(iii) A claim for disposition must satisfy one of the following criteria:
(A) The claim is from an Indian Tribe or Native Hawaiian organization identified in the notice of intended disposition with priority for disposition, or
(B) The claim is not from an Indian Tribe or Native Hawaiian organization identified in the notice of intended disposition, and shows that the claimant is a lineal descendant, Indian Tribe, or Native Hawaiian organization having priority for disposition under paragraph (a) of this section.
(4)
(i) In the written response, the appropriate official must state one of the following:
(A) The claim meets the criteria under paragraph (d)(3) of this section. The appropriate official will send a disposition statement to the claimant under paragraph (d)(5) of this section, unless the appropriate official receives additional, competing claims for disposition of human remains or cultural items.
(B) The claim does not meet the criteria under paragraph (d)(3) of this section. The appropriate official must provide a detailed explanation why the claim does not meet the criteria and an opportunity for the claimant to provide additional information to meet the criteria.
(C) The appropriate official has received competing claims for disposition of the human remains or cultural items that meet the criteria and must determine the most appropriate claimant using the procedures and timelines under paragraph (d)(4)(ii) of this section.
(ii) At any time before sending a disposition statement for human remains or cultural items under paragraph (d)(5) of this section, the appropriate official may receive additional, competing claims for disposition of the human remains or cultural items that meet the criteria under paragraph (d)(3) of this section. The appropriate official must determine the most appropriate claimant using the priority for disposition under paragraph (a) of this section.
(A) No later than 10 days after receiving a competing claim, the appropriate official must send a written letter to each claimant identifying all claimants and the date each claim was received,
(B) No later than 120 days after informing the claimants of competing claims, the appropriate official must send a written determination to each claimant identifying the most appropriate claimant(s), and
(C) No earlier than 30 days but no later than 90 days after sending a determination of the most appropriate claimant(s), the appropriate official must send a disposition statement to the most appropriate claimant(s) under paragraph (d)(5) of this section.
(5)
(i) Before sending the disposition statement, the appropriate official must consult with the claimant(s) on the care, custody, and physical transfer of the human remains or cultural items.
(ii) After sending the disposition statement, the appropriate official must:
(A) Document any physical transfer by recording the contents, recipient(s), and method of delivery and
(B) Protect sensitive information, as identified by the claimant(s), from disclosure to the general public to the extent consistent with applicable law.
(iii) After the disposition statement is sent, nothing in the Act or this part:
(A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the Indian Tribe or Native Hawaiian organization concerning the care or custody of the human remains or cultural items,
(B) Limits any procedural or substantive right which may otherwise be secured to the Indian Tribe or Native Hawaiian organization, or
(C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its control or ownership of human remains, funerary objects, or sacred objects.
(e)
(1)
(i) Human remains or cultural items are unclaimed when:
(A) One year after publishing a notice of intended disposition under paragraph (d)(2) of this section, no Indian Tribe or Native Hawaiian organization submits a written claim for disposition, or
(B) One year after discovery or excavation of the human remains or cultural items, the appropriate official could not reasonably identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.
(ii) A list of unclaimed human remains or cultural items must include:
(A) A brief description of the human remains or cultural items, including the county and state where the human remains or cultural items were removed;
(B) The names of all consulting parties and an abstract of the results of consultation;
(C) If known, the identity of the human remains or cultural items specifically as human remains, associated funerary objects, unassociated funerary objects, sacred objects, objects of cultural patrimony, or both sacred objects and objects of cultural patrimony, and a brief abstract of the information used to make that identification; and
(D) If known, the name of each Indian Tribe or Native Hawaiian organization
(iii) At any time before transferring or reinterring human remains or cultural items under paragraph (e)(4) of this section, the appropriate official may receive a claim for disposition of the human remains or cultural items and must evaluate whether the claim meets the criteria under paragraph (d)(3) of this section. Any agreement to transfer or decision to reinter the human remains or cultural items under this paragraph is stayed until the claim for disposition is resolved under paragraph (d) of this section. No later than 10 days after receiving a claim for disposition, the appropriate official must send a written letter to each claimant or requestor identifying all claimants and requestors and the date each claim or request was received.
(A) If the claim meets the criteria under paragraph (d)(3) of this section and a notice of intended disposition was published under paragraph (d)(2) of this section, the appropriate official must respond in writing under paragraph (d)(4) and proceed with disposition under (d)(5) of this section.
(B) If the claim meets the criteria under paragraph (d)(3) of this section but no notice of intended disposition was published, the appropriate official must submit a notice of intended disposition under paragraph (d)(2), respond in writing under paragraph (d)(4), and proceed with disposition under (d)(5) of this section.
(C) No later than 90 days after responding to a claim for disposition that meets the criteria, the appropriate official must send a written letter to each claimant or requestor identifying the claimant that has control or ownership of the human remains or cultural items.
(D) If the claim does not meet the criteria under paragraph (d)(3) of this section, the appropriate official must respond in writing under paragraph (d)(4) and may proceed with transfer or reinterment under paragraph (e)(2) of this section.
(2)
(i) Agree in writing to transfer unclaimed cultural items to a requestor that agrees to treat the human remains or cultural items according to the requestor's laws and customs. Unclaimed cultural items must be requested in writing and may only be requested by:
(A) An Indian Tribe or Native Hawaiian organization, or
(B) An Indian group that is not federally recognized but has a relationship to unclaimed human remains or associated funerary objects.
(ii) Decide in writing to reinter unclaimed human remains or funerary objects according to applicable laws and policies.
(3)
(i) A notice of proposed transfer or reinterment must conform to the mandatory format of the
(A) The details provided in the list of unclaimed cultural items under paragraph (e)(1) of this section;
(B) The name of each Indian Tribe, Native Hawaiian organization, or Indian group requesting the human remains or cultural items or a statement that the Federal agency or DHHL will reinter the human remains or funerary objects;
(C) The name, phone number, email address, and mailing address for the appropriate official who is responsible for receiving written claims for disposition of the human remains or cultural items; and
(D) The date (to be calculated by the
(ii) No later than 15 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the
(B) Return to the Federal agency or DHHL any submission that does not meet the requirements under paragraph (e)(3)(i) of this section.
(4)
(i) After transferring or reinterring, the appropriate official must:
(A) Document the transfer by recording the contents, recipient, and method of delivery,
(B) Document the reinterment by recording the contents of the reinterment,
(C) Protect sensitive information about the human remains or cultural items from disclosure to the general public to the extent consistent with applicable law.
(ii) After transfer or reinterment occurs, nothing in the Act or this part:
(A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the requestor concerning the care or custody of the human remains or cultural items,
(B) Limits any procedural or substantive right which may otherwise be secured to the Indian Tribe or Native Hawaiian organization, or
(C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its control or ownership of human remains, funerary objects, or sacred objects.
Each museum and Federal agency that has possession or control of a holding or collection that may contain human remains, funerary objects, sacred objects, or objects of cultural patrimony must comply with the requirements of this subpart, regardless of the physical location of the holding or collection. Each museum and Federal agency must identify one or more authorized representatives who are responsible for carrying out the requirements of this subpart.
(a)
(1) A museum must determine whether it has sufficient interest in a holding or collection to constitute possession or control on a case-by-case basis given the relevant information about the holding or collection.
(i) A museum may have custody of a holding or collection but not possession
(ii) If a museum has custody of a holding or collection, the museum may be required to report the holding or collection under paragraphs (c) or (d) of this section.
(2) Any museum that completes repatriation of human remains and cultural items or transfers or reinters human remains and associated funerary objects in good faith under this subpart shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of state law that are inconsistent with the provisions of the Act or this part.
(b)
(1) Was in its possession or control on or before November 16, 1990; or
(2) Came into its possession or control after November 16, 1990, and was removed from:
(i) An unknown location, or
(ii) Lands that are neither Federal nor Tribal lands as defined in this part.
(c)
(1) No later than 120 days following receipt of a museum's statement, the Federal agency must respond to the museum and the Manager, National NAGPRA program, with a written acknowledgement of one of the following:
(i) The Federal agency has possession or control of the holding or collection;
(ii) The Federal agency does not have possession or control of the holding or collection; or
(iii) The Federal agency and the museum have joint possession or control of the holding or collection.
(2) Failure to issue such a determination by the deadline will constitute acknowledgement that the Federal agency has possession or control. The Federal agency is ultimately responsible for the requirements of this subpart for all holdings or collections under its possession or control, regardless of the physical location of the holdings or collection.
(d)
(e)
Each museum and Federal agency that has possession or control of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony must follow the steps in this section. The purpose of this section is to provide general information about a holding or collection to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation.
(a)
(1) A summary must include:
(i) The estimated number and a general description of the holding or collection, including any potential unassociated funerary objects, sacred objects, and objects of cultural patrimony;
(ii) The county and state where the potential unassociated funerary objects, sacred objects, and objects of cultural patrimony were removed;
(iii) The acquisition history (provenance) of the potential unassociated funerary objects, sacred objects, and objects of cultural patrimony;
(iv) Other information relevant for identifying:
(A) A lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation;
(B) Any object or item as an unassociated funerary object, sacred object, or object of cultural patrimony; and
(v) The presence of any potentially hazardous substances used to treat any of the unassociated funerary objects, sacred objects, or objects of cultural patrimony, if known.
(2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(i) By November 16, 1993, for unassociated funerary objects, sacred objects, and objects of cultural patrimony subject to the Act;
(ii) By October 20, 2007, for unassociated funerary objects, sacred objects, and objects of cultural patrimony acquired or located after November 16, 1993;
(iii) By April 20, 2010, for unassociated funerary objects, sacred objects, and objects of cultural patrimony in the possession or control of a museum that received Federal funds for the first time after November 16, 1993;
(iv) Within six months of acquiring or locating unassociated funerary objects,
(v) Within three years of receiving Federal funds for the first time after April 20, 2010.
(4) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(b)
(1) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential affiliation.
(2) An invitation to consult must be in writing and must include:
(i) The summary described in paragraph (a)(1) of this section;
(ii) The names of all identified consulting parties; and
(iii) A proposed timeline and method for consultation.
(3) Any consulting party, regardless of whether the party has received an invitation to consult, must submit a written request to consult. A written request to consult may be submitted at any time before the publication of a notice of intended repatriation under paragraph (f) of this section.
(4) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must make a good-faith effort to invite the party to consult and must send an invitation to consult under paragraph (b)(2) of this section. An invitation to consult must be sent to new consulting parties:
(i) No later than 10 days after identifying a new consulting party based on new information; or
(ii) No later than six months after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the
(c)
(1) In the response to the requesting party, a museum or Federal agency must ask a requesting party for the following information, if not already provided:
(i) Recommendations on the proposed timeline and method for consultation; and
(ii) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who should participate in consultation.
(2) The consultation process must seek consensus, to the maximum extent possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian organizations with cultural affiliation;
(iii) The types of objects that might be unassociated funerary objects, sacred objects, or objects of cultural patrimony; and
(iv) The appropriate treatment, care, and handling of unassociated funerary objects, sacred objects, or objects of cultural patrimony.
(3) The museum or Federal agency must prepare a record of consultation that includes the effort made to seek consensus. If recommendations by requesting parties are not possible, the record of consultation must describe efforts to identify a mutually agreeable alternative. For any determination considered during the consultation process, the museum or Federal agency must record the concurrence, disagreement, or nonresponse of the requesting parties.
(4) At any time before a museum or Federal agency sends a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section, the museum or Federal agency may receive a request from a consulting party for access to records, catalogues, relevant studies, or other pertinent data related to the holding or collection. A museum or Federal agency must provide access to the additional information in a reasonable manner and for the limited purpose of determining affiliation and acquisition history of the unassociated funerary object, sacred object, or object of cultural patrimony.
(d)
(1) A request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for that unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section. A request for repatriation received by the museum or Federal agency before the deadline for completing a summary is dated the same date as the deadline for completing the summary.
(2) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony are considered a single request and not competing requests.
(3) A request for repatriation must satisfy all the following criteria:
(i) Each unassociated funerary object, sacred object, or object of cultural patrimony being requested meets the definition of an unassociated funerary object, a sacred object, or an object of cultural patrimony;
(ii) The request is from a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and
(iii) The request includes information to support a finding that the museum or Federal agency does not have right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony.
(e)
(1) The request meets the criteria under paragraph (d) of this section. The museum or Federal agency will submit a notice of intended repatriation under paragraph (f) of this section.
(2) The request does not meet the criteria under paragraph (d) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria and an opportunity for the requestor to provide additional information to meet the criteria.
(3) The request meets the criteria under paragraph (d)(3)(i) and (ii) of this section, but the museum or Federal agency asserts a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony and refuses to complete repatriation of the requested object to the requestor. The museum or Federal agency must provide information to prove that the museum or Federal agency has a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony.
(4) The museum or Federal agency has received competing requests for repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony that meet the criteria and must determine the most appropriate requestor using the procedures and timelines under paragraph (h) of this section.
(f)
(1) A notice of intended repatriation must conform to the mandatory format of the
(i) The number of unassociated funerary object, sacred object, or object of cultural patrimony and a brief description of each object (counted separately or by lot);
(ii) The county and state where the unassociated funerary object, sacred object, or object of cultural patrimony were removed;
(iii) The acquisition history (provenance) of the unassociated funerary object, sacred object, or object of cultural patrimony, including the circumstances surrounding its acquisition;
(iv) The identity of each unassociated funerary object, sacred object, or object of cultural patrimony specifically as an unassociated funerary object, a sacred object, an object of cultural patrimony, or both a sacred object and an object of cultural patrimony, and a brief abstract of the information used to make that identification;
(v) The lineal descendant, Indian Tribe, or Native Hawaiian organization requesting repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony and a brief abstract of the information showing the requestor is a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation;
(vi) Information about the presence of any potentially hazardous substances used to treat the unassociated funerary object, sacred object, or object of cultural patrimony, if known;
(vii) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and
(viii) The date (to be calculated by the
(2) No later than 15 days after receiving a notice of intended repatriation, the Manager, National NAGPRA Program, will:
(i) Approve for publication in the
(ii) Return to the museum or Federal agency any submission that does not meet the requirements under paragraph (f)(1) of this section.
(3) If the number or identity of unassociated funerary objects, sacred objects, or objects of cultural patrimony stated in a published notice of intended repatriation changes before the museum or Federal agency sends a repatriation statement under paragraph (g) of this section, the museum or Federal agency must submit a correction notice to the Manager, National NAGPRA Program. A museum or Federal agency is not required to submit a correction notice if there are additional pieces belonging to an unassociated funerary object, sacred object, or object of cultural patrimony previously identified in a notice and repatriation is to the same requestor. No later than 10 days after determining the new number or new identity of the unassociated funerary object, sacred object, or object of cultural patrimony, the museum or Federal agency must submit a correction notice containing, as applicable:
(i) The corrected number of unassociated funerary object, sacred object, or object of cultural patrimony and corrected brief description of each object;
(ii) The corrected identity of the unassociated funerary objects, sacred objects, or objects of cultural patrimony specifically as an unassociated funerary object, a sacred object, an object of cultural patrimony, or both a sacred object and an object of cultural patrimony, and corrected brief abstract of the information used to make that identification;
(iii) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and
(iv) The date (to be calculated by the
(4) At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency must determine the most appropriate requestor the procedures and timelines under paragraph (h) of this section.
(g)
(1) Before sending the repatriation statement, the museum or Federal agency must consult with the requestor on the care, custody, and physical transfer of the unassociated funerary object, sacred object, or object of cultural patrimony,
(2) After sending the repatriation statement, the museum or Federal agency must:
(i) Document any physical transfer of the unassociated funerary object, sacred object, or object of cultural patrimony by recording the contents, recipient, and method of delivery, and
(ii) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law.
(3) After the repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the care or custody of the unassociated funerary object, sacred object, or object of cultural patrimony.
(h)
(1) For an unassociated funerary object or sacred object, in the following priority order, the most appropriate requestor is:
(i) The lineal descendant, if any, or
(ii) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(d).
(2) For an object of cultural patrimony, the most appropriate requestor is the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(d).
(3) No later than 10 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request was received.
(4) No later than 120 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following:
(i) The most appropriate requestor has been determined and the competing requests were received before the publication of a notice of intended repatriation. The museum or Federal agency must:
(A) Identify the most appropriate requestor and explain how the determination was made,
(B) Submit a notice of intended repatriation in accordance with paragraph (f) of this section no later than 30 days after sending the determination, and
(C) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section.
(ii) The most appropriate requestor has been determined and a notice of intended repatriation was previously published. The museum or Federal agency must:
(A) Identify the most appropriate requestor and explain how the determination was made,
(B) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section.
(iii) The most appropriate requestor cannot be determined, and the repatriation is stayed under paragraph (i) of this section. The museum or Federal agency must explain why the most appropriate requestor could not be determined.
(i)
(1) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written statement of the resolution to each requestor and the Manager, National NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section, unless a court of competent jurisdiction directs otherwise.
(2) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (h) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section.
(3) Before the publication of a notice of intended repatriation under paragraph (f) of this section, the museum or Federal agency has both requested and received the Secretary's written concurrence that the unassociated funerary object, sacred object, or object of cultural patrimony is indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the people of the United States.
(i) To request the Secretary's concurrence, the museum or Federal agency must send to the Manager, National NAGPRA Program, a written request of no more than 10 double-spaced pages. The written request must:
(A) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative;
(B) Describe the specific scientific study, the date on which the study commenced, and how the study would be of major benefit to the people of the United States;
(C) Explain why retention of the unassociated funerary object, sacred object, or object of cultural patrimony is indispensable for completion of the study;
(D) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date;
(E) Provide the position titles of the persons responsible for each step in the schedule; and
(F) Affirm that the study has in place the requisite funding.
(ii) If the Secretary concurs with the request, the Secretary will send a written concurrence and specify the date by which the scientific study must be completed.
(iii) No later than 30 days after the completion date in the Secretary's concurrence, the museum or Federal agency must submit a notice of intended repatriation in accordance with paragraph (f) of this section.
(iv) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a
Each museum and Federal agency that has possession or control of a holding or collection that contains human remains or associated funerary objects must follow the steps in this section. The purpose of this section is to provide determinations, following consultation, about human remains and associated funerary objects to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation.
(a)
(1) The number of individuals determined in a reasonable manner based on the information available. No additional study or analysis is required to determine the number of individuals. If human remains are in a holding or collection, the number of individuals is at least one;
(2) The number of associated funerary objects and types of objects (counted separately or by lot);
(3) The county and state where the human remains and associated funerary objects were removed;
(4) The acquisition history (provenance) of the human remains and associated funerary objects;
(5) Other information relevant for identifying a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural or geographical affiliation; and
(6) The presence of any potentially hazardous substances used to treat any of the human remains or associated funerary objects, if known.
(b)
(1) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential affiliation.
(2) An invitation to consult must be in writing and must include:
(i) The simple itemized list described in paragraph (a) of this section;
(ii) The names of all identified consulting parties; and
(iii) A proposed timeline and method for consultation.
(3) Any consulting party, regardless of whether the party has received an invitation to consult, must submit a written request to consult. A written request to consult may be submitted at any time before the publication of a notice of inventory completion under paragraph (e) of this section.
(4) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must make a good-faith effort to invite the party to consult and must send an invitation to consult under paragraph (b)(2) of this section. An invitation to consult must be sent to new consulting parties:
(i) No later than 10 days after identifying a new consulting party based on new information; or
(ii) No later than two years after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the
(c)
(1) In the response to the requesting party, a museum or Federal agency must ask a requesting party for the following information, if not already provided:
(i) Recommendations on the proposed timeline and method for consultation; and
(ii) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leaders, and known lineal descendant who should participate in consultation.
(2) The consultation process must seek consensus, to the maximum extent possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian organizations with cultural or geographical affiliation;
(iii) The types of objects that might be associated funerary objects, including any objects that were made exclusively for burial purposes or to contain human remains; and
(iv) The appropriate treatment, care, and handling of human remains and associated funerary objects.
(3) The museum or Federal agency must prepare a record of consultation that includes the effort made to seek consensus. If recommendations by requesting parties are not possible, the record of consultation must describe efforts to identify a mutually agreeable alternative. For any determination considered during the consultation process, the museum or Federal agency must record the concurrence, disagreement, or nonresponse of the requesting parties.
(4) At any time before the museum or Federal agency sends a repatriation statement for human remains and associated funerary objects to a
(d)
(1) An inventory must include:
(i) The names of all consulting parties and an abstract of the results of consultation;
(ii) The information from the simple itemized list compiled under paragraph (a) of this section;
(iii) For each entry in the itemized list, a determination of one or more of the following:
(A) There is a known lineal descendant,
(B) There is a connection between the human remains and associated funerary objects and an Indian Tribe or Native Hawaiian organization through cultural affiliation,
(C) There is a connection between the human remains and associated funerary objects and an Indian Tribe or Native Hawaiian organization through geographical affiliation, or
(D) There is no connection between the human remains and associated funerary objects and any Indian Tribe or Native Hawaiian organization; and
(iv) An abstract of the information supporting that determination including:
(A) The lineal descendant or the Indian Tribe or Native Hawaiian organization with cultural or geographical affiliation, or
(B) An explanation why no Indian Tribes or Native Hawaiian organizations with cultural or geographical affiliation could be reasonably identified.
(2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(i) By November 16, 1995, for human remains or associated funerary objects subject to the Act;
(ii) By April 20, 2009, for human remains or associated funerary objects acquired or located after November 16, 1995;
(iii) By April 20, 2012, for human remains or associated funerary objects in the possession or control of a museum that received Federal funds for the first time after November 16, 1995;
(iv) Within two years of acquiring or locating the human remains or associated funerary objects after April 20, 2009; or
(v) Within five years of receiving Federal funds for the first time after April 20, 2012.
(4) No later than [DATE 760 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(i) Initiate consultation as described under paragraph (b) of this section;
(ii) Consult with requesting parties as described under paragraph (c) of this section;
(iii) Update its inventory to include the requirements described under paragraph (d)(1) of this section and ensure the inventory is comprehensive and covers all holdings or collections relevant to this section; and
(iv) Submit an updated inventory to all consulting parties and the Manager, National NAGPRA Program.
(5) Any museum may request an extension to complete or update its inventory if it has made a good faith effort but will be unable to do so by the appropriate deadline. A request for an extension must be submitted to the Manager, National NAGPRA Program, before the appropriate deadline. The Manager, National NAGPRA Program will publish in the
(i) Information showing the initiation of consultation and any requests to consult;
(ii) The names of all consulting parties and an abstract of the results of consultation;
(iii) The estimated number of the human remains and associated funerary objects in the holding or collection; and
(iv) A written plan for completing or updating the inventory, which includes, at minimum:
(A) The specific steps required to complete or update the inventory;
(B) A schedule for completing each step and estimated inventory completion or update date;
(C) Position titles of the persons responsible for each step in the schedule; and
(D) A proposal to obtain any requisite funding needed to complete or update the inventory.
(6) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
(e)
(1) The notice of inventory completion must be sent to the:
(i) Lineal descendants and Indian Tribes or Native Hawaiian organizations identified in the inventory, and
(ii) Manager, National NAGPRA Program, for publication in the
(2) A notice of inventory completion must conform to the mandatory format of the
(i) The number of individuals determined in a reasonable manner based on the information available. No additional study or analysis is required to determine the number of individuals. If human remains are in a holding or collection, the number of individuals is at least one.
(ii) The number of associated funerary objects and types of objects (counted separately or by lot);
(iii) The county and state where the human remains and associated funerary objects were removed;
(iv) The acquisition history (provenance) of the human remains and associated funerary objects, including the circumstances surrounding their acquisition;
(v) The lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural or geographical affiliation and a brief abstract of the information used to make that identification;
(vi) When cultural affiliation has been determined, a statement whether cultural affiliation was clearly identified or was based on the totality of the circumstances surrounding acquisition history of the human remains and associated funerary objects;
(vii) Information about the presence of any potentially hazardous substances used to treat the human remains or associated funerary objects, if known;
(viii) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and
(ix) The date (to be calculated by the
(3) No later than 15 days after receiving a notice of inventory completion, the Manager, National NAGPRA Program, will:
(i) Approve for publication in the
(ii) Return to the museum or Federal agency any submission that does not meet the requirements under paragraph (e)(2) of this section.
(4) If the number of individuals or the number of associated funerary objects stated in a published notice of inventory completion changes before the museum or Federal agency sends a repatriation statement under paragraph (h) of this section, the museum or Federal agency must submit a correction notice to the Manager, National NAGPRA Program. A museum or Federal agency is not required to publish a correction notice if there are additional pieces belonging to human remains or associated funerary objects previously identified in a notice and repatriation is to the same requestor. No later than 10 days after determining the new number of individuals or associated funerary objects, the museum or Federal agency must submit a correction notice containing, as applicable:
(i) The corrected number of individuals;
(ii) The corrected number of associated funerary objects and types of objects,
(iii) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation, and
(iv) The date (to be calculated by the
(f)
(1) A request for repatriation of human remains and associated funerary objects must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for those human remains and associated funerary objects under paragraph (h) of this section. Any request for repatriation received by the museum or Federal agency no later than 30 days after publication of a notice must be considered. A request for repatriation received by the museum or Federal agency before the publication of the notice of inventory completion is dated the same date the notice was published.
(2) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests.
(3) A request for repatriation must satisfy one of the following criteria:
(i) The request is from a lineal descendant, Indian Tribe, or Native Hawaiian organization identified in the notice of inventory completion, or
(ii) The request is not from a lineal descendant, Indian Tribe, or Native Hawaiian organization identified in the notice of inventory completion, and shows, by a preponderance of the evidence, that the requestor is a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural or geographical affiliation.
(g)
(1) In the written response, the museum or Federal agency must state one of the following:
(i) The request meets the criteria under paragraph (f) of this section. The museum or Federal agency will send a repatriation statement to the requestor under paragraph (h) of this section, unless the museum or Federal agency receives additional, competing requests for repatriation.
(ii) The request does not meet the criteria under paragraph (f) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria, and an opportunity for the requestor to provide additional information to meet the criteria.
(iii) The museum or Federal agency has received competing requests for repatriation that meet the criteria and must determine the most appropriate requestor using the procedures and timelines under paragraph (i) of this section.
(2) At any time before sending a repatriation statement for human remains and associated funerary objects under paragraph (h) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of those human remains and associated funerary objects that meet the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor the procedures and timelines under paragraph (i) of this section.
(h)
(1) Before sending the repatriation statement, the museum or Federal agency must consult with the requestor on the care, custody, and physical transfer of the human remains and associated funerary objects.
(2) After sending the repatriation statement, the museum or Federal agency must:
(i) Document any physical transfer of the human remains and associated funerary objects by recording the contents, recipient, and method of delivery, and
(ii) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law.
(3) After the repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the care or custody of the human remains and associated funerary objects.
(i)
(1) In the following priority order, the most appropriate requestor is:
(i) The known lineal descendant, if any; or
(ii) The Indian Tribe or Native Hawaiian organization with the closest affiliation according to the priority order at § 10.3(d).
(2) No later than 10 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request for repatriation was received.
(3) No later than 120 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following:
(i) The most appropriate requestor has been determined. The museum or Federal agency must:
(A) Identify the most appropriate requestor and explain how the determination was made,
(B) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (h) of this section.
(ii) The most appropriate requestor cannot be determined, and the repatriation is stayed under paragraph (j) of this section. The museum or Federal agency must explain why the most appropriate requestor could not be determined.
(j)
(1) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written statement of the resolution to each requestor and the Manager, National NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless a court of competent jurisdiction directs otherwise.
(2) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (i) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section.
(3) Before the publication of a notice of inventory completion under paragraph (e) of this section, the museum or Federal agency has both requested and received the Secretary's written concurrence that the human remains and associated funerary objects are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the people of the United States.
(i) To request the Secretary's concurrence, the museum or Federal agency must send to the Manager, National NAGPRA Program, a written request of no more than 10 double-spaced pages. The written request must:
(A) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative;
(B) Describe the specific scientific study, the date on which the study commenced, and how the study would be of major benefit to the people of the United States;
(C) Explain why retention of the human remains and associated funerary objects is indispensable for completion of the study;
(D) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date;
(E) Provide the position titles of the persons responsible for each step in the schedule; and
(F) Affirm that the study has in place the requisite funding.
(ii) If the Secretary concurs with the request, the Secretary will send a written concurrence and specify the date by which the scientific study must be completed.
(iii) No later than 30 days after the completion date in the Secretary's concurrence, the museum or Federal agency must submit a notice of intended repatriation in accordance with paragraph (e) of this section.
(iv) No earlier than 30 days after publication of the notice of inventory completion and no later than 90 days after responding to a request for repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section.
(k)
(1)
(i) Agree in writing to transfer the human remains and associated funerary objects to a requestor that agrees to treat the human remains and associated funerary objects according to the requestor's laws and customs. Human remains and associated funerary objects must be requested in writing and may only be requested by:
(A) An Indian Tribe or Native Hawaiian organization, or
(B) An Indian group that is not federally recognized but has a relationship to the human remains and associated funerary objects.
(ii) Decide in writing to reinter the human remains and associated funerary objects according to applicable laws and policies.
(2)
(i) A notice of proposed transfer or reinterment must conform to the mandatory format of the
(A) The number of individuals determined in a reasonable manner based on the information available. No additional study or analysis is required to determine the number of individuals. If human remains are in a holding or collection, the number of individuals is at least one.;
(B) The number of associated funerary objects and type of objects (counted separately or by lot);
(C) The county and state where the human remains and associated funerary objects were removed, if known;
(D) The acquisition history (provenance) of the human remains and associated funerary objects, including the circumstances surround their acquisition;
(E) The names of all consulting parties and an abstract of the results of consultation;
(F) A brief abstract of the information that explains why no Indian Tribes or Native Hawaiian organizations with cultural or geographical affiliation could be reasonably identified;
(G) Information about the presence of any potentially hazardous substances used to treat the human remains and associated funerary objects, if known;
(H) The Indian Tribe, Native Hawaiian organization, or Indian group requesting the human remains and associated funerary objects or a statement that the museum or Federal agency will reinter the human remains and associated funerary objects;
(I) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and
(J) The date (to be calculated by the
(ii) No later than 15 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the
(B) Return to the museum or Federal agency any submission that does not meet the requirements under paragraph (k)(2)(i) of this section.
(iii) After publication of a notice, if the museum or Federal agency receives a request for repatriation of the human remains and associated funerary objects before transfer or reinterment, the museum or Federal agency must evaluate whether the request meets the criteria under paragraph (f) of this section.
(A) If the request for repatriation meets the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and proceed with repatriation under paragraph (h) of this section.
(B) If the request does not meet the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and proceed with transfer or reinterment under paragraph (k)(3) of this section.
(3)
(i) Document the transfer of the human remains and associated funerary objects by recording the contents, recipient, and method of delivery,
(ii) Document the reinterment by recording the contents of the reinterment,
(iii) Protect sensitive information from disclosure to the general public to the extent consistent with applicable law.
(4) After transfer or reinterment occurs, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the care or custody of the human remains and associated funerary objects.
Any museum that fails to comply with the requirements of the Act or this subpart may be assessed a civil penalty by the Secretary. This section does not apply to Federal agencies, but a Federal agency's failure to comply with the requirements of the Act or this part may be subject to other remedies under Federal law. Each instance of failure to comply will constitute a separate violation. The Secretary must serve the museum with a written notice of failure to comply under paragraph (d) of this section or a notice of assessment under paragraph (g) of this section by personal delivery with proof of delivery date, certified mail with return receipt, or private delivery service with proof of delivery date.
(a)
(1) Must include the full name, mailing address, telephone number, and (if available) email address of the person alleging the failure to comply;
(2) Must identify the specific provision or provisions of the Act or this subpart that the museum is alleged to have violated;
(3) Must enumerate the separate violations alleged, including facts to support the number of separate violations. The number of separate violations is determined by establishing relevant factors such as:
(i) The number of lineal descendants, Indian Tribes, or Native Hawaiian organizations named in the allegation and determined to be aggrieved by the failure to comply; or
(ii) The number of individuals or the number of funerary objects, sacred objects, or objects of cultural patrimony involved in the failure to comply;
(4) Should include information showing that the museum has possession or control of the Native American cultural items involved in the alleged failure to comply; and
(5) Should include information showing that the museum receives Federal funds.
(b)
(1) The Secretary may request any additional relevant information from the person making the allegation, the museum, or other parties. The Secretary may conduct any investigation that is necessary to determine whether an alleged failure to comply is substantiated. The Secretary may also investigate appropriate factors for justifying an increase or reduction to any penalty amount that may be calculated.
(2) The Secretary, after reviewing all relevant information, must determine one of the following for each alleged failure to comply:
(i) The alleged failure to comply is substantiated, the number of separate violations is identified, and a civil penalty is an appropriate remedy. The Secretary will calculate the proposed penalty amount under paragraph (c) of this section and notify the museum under paragraph (d) of this section;
(ii) The alleged failure to comply is substantiated, the number of separate violations is identified, but a civil penalty is not an appropriate remedy. The Secretary will notify the museum under paragraph (d) of this section; or
(iii) The alleged failure to comply is unsubstantiated. The Secretary will send a written determination to the person making the allegation and to the museum.
(c)
(1) The base penalty amount is $7,475, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74).
(2) The base penalty amount may be increased after considering:
(i) The ceremonial or cultural value of the human remains or cultural items involved, as identified by any aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization;
(ii) The archaeological, historical, or commercial value of the human remains or cultural items involved;
(iii) The economic and non-economic damages suffered by any aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization, including expenditures by the aggrieved party to compel the museum to comply with the Act or this subpart;
(iv) The number of prior violations by the museum that have occurred; or
(v) Any other appropriate factor justifying an increase.
(3) The base penalty amount may be reduced if:
(i) The museum comes into compliance;
(ii) The museum agrees to mitigate the violation in the form of an actual or an in-kind payment to an aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization;
(iii) The penalty constitutes excessive punishment under the circumstances;
(iv) The museum is unable to pay the full penalty and the museum has not previously been found to have failed to comply with the Act or this subpart. The museum has the burden of proving it is unable to pay by providing verifiable, complete, and accurate financial information to the Secretary. The Secretary may request that the museum provide such financial information that is adequate and relevant to evaluate the museum's financial condition, including the value of the museum's cash and liquid assets; ability to borrow; net worth; liabilities; income tax returns; past, present, and future income; prior and anticipated profits; expected cash flow; and the museum's ability to pay in installments over time. If the museum does not submit the requested financial information, the museum will be presumed to have the ability to pay the civil penalty; or
(v) Any other appropriate factor justifies a reduction.
(d)
(1) Provide a concise statement of the facts believed to show a failure to comply;
(2) Specifically reference the provisions of the Act and this subpart with which the museum has failed to comply;
(3) Include the proposed penalty amount calculated under paragraph (c) of this section;
(4) Include, where appropriate, any initial proposal to reduce or increase the penalty amount or an explanation for why the Secretary has determined that a penalty is not an appropriate remedy;
(5) Identify the options for responding to the notice of failure to comply under paragraph (e) of this section; and
(6) Inform the museum that the Secretary may assess a daily penalty amount under paragraph (m)(1) of this
(e)
(1) Seek an informal discussion of the failure to comply;
(2) Request either or both of the following forms of relief, with a full explanation of the legal or factual basis for the requested relief:
(i) That the Secretary reconsider the determination of a failure to comply, or
(ii) That the Secretary reduce the proposed penalty amount; or
(3) Accept the determination of a failure to comply and agree in writing that the museum will do the following, which will constitute an agreement between the Secretary and the museum:
(i) Pay the proposed penalty amount, if any,
(ii) Complete the mitigation required to reduce the penalty, if offered in the notice, and
(iii) Waive any right to receive notice of assessment under paragraph (g) of this section and to request a hearing under paragraph (i) of this section.
(f)
(1) The assessment of a civil penalty is made after the latter of:
(i) The 45-day period for a response has expired and the museum has taken no action;
(ii) Conclusion of informal discussion, if any;
(iii) Review and consideration of a petition for relief, if any; or
(iv) Failure to meet the terms of an agreement established under paragraph (e)(3) of this section.
(2) If a petition for relief or informal discussion warrants a conclusion that no failure to comply has occurred, the Secretary must send written notification to the museum revoking the notice of failure to comply. No penalty is assessed.
(g)
(1) Specifically reference the provisions of the Act or this subpart with which the museum has not complied;
(2) Include the final amount of any penalty calculated under paragraph (c) of this section and the basis for determining the penalty amount;
(3) Include, where appropriate, any increase or reduction to the penalty amount or an explanation for why the Secretary has determined that a penalty is not an appropriate remedy;
(4) Include the daily penalty amount that the Secretary may assess under paragraph (m)(1) of this section if the failure to comply continues after the date the final administrative decision of the Secretary takes effect. The daily penalty amount for each continuing violation shall not exceed $1,496 per day, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74);
(5) Identify the options for responding to the notice of assessment under paragraph (h) of this section; and
(6) Notify the museum that it has the right to seek judicial review of the final administrative decision of the Secretary only if it has exhausted all administrative remedies under this section, as set forth in paragraph (l) of this section.
(h)
(1) Accept the assessment and pay the penalty amount by means of a certified check made payable to the U.S. Treasurer, Washington, DC, sent to the Secretary. By paying the penalty amount, the museum waives the right to request a hearing under paragraph (i) of this section.
(2) File a written request for a hearing under paragraph (i) of this section to contest the failure to comply, the penalty assessment, or both. If the museum does not file a written request for a hearing within 45 days, the museum waives the right to request a hearing under paragraph (i) of this section.
(i)
(1) Include a copy of the notice of failure to comply and the notice of assessment;
(2) State the relief sought by the museum; and
(3) Include the basis for challenging the facts used to determine the failure to comply or the penalty assessment.
(j)
(1) To the extent they are not inconsistent with this section, the general rules in 43 CFR part 4, subparts A and B apply to the hearing process.
(2) Subject to the provisions of 43 CFR 1.3, a museum may appear by authorized representative or by counsel and may participate fully in the proceedings. If the museum does not appear and the administrative law judge determines that this absence is without good cause, the administrative law judge may, at his or her discretion, determine that the museum has waived the right to a hearing and consents to the making of a decision on the record.
(3) The Department of the Interior counsel, designated by the Solicitor of the Department of the Interior, represents the Secretary in the proceedings. Within 20 days of receipt of its copy of the written request for hearing, Departmental counsel must file with the DCHD an entry of appearance on behalf of the Secretary and the following:
(i) Any written communications between the Secretary and the museum during any informal discussions under paragraph (e)(1) of this section;
(ii) Any petition for relief submitted under paragraph (e)(2); and
(iii) Any other information considered by the Secretary in reaching the decision being challenged. Thereafter, the museum must serve each document filed with the administrative law judge on Departmental counsel.
(4) In a hearing on the penalty assessment, the amount of the penalty assessment must be determined in accordance with paragraph (c)(2) of this section and will not be limited to the amount originally assessed or by any previous reduction, increase, or offer of mitigation.
(5) The administrative law judge has all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process, and to render a decision under 5 U.S.C. 554-557.
(6) The administrative law judge will render a written decision based upon the hearing record. The decision must set forth the findings of fact and conclusions of law, and the reasons and basis for them.
(7) The administrative law judge's decision takes effect as the final administrative decision of the Secretary 31 days from the date of the decision unless the museum files a notice of appeal as described in paragraph (k) of this section.
(k)
(1) To the extent they are not inconsistent with this section, the provisions of 43 CFR part 4, subpart D, apply to the appeal process. The appeal board's decision must be in writing and takes effect as the final penalty assessment and the final administrative decision of the Secretary on the date that the appeal board's decision is rendered, unless otherwise specified in the appeal board's decision.
(2) OHA decisions in proceedings instituted under this section are posted on OHA's website.
(l)
(m)
(2) If the museum fails to pay the penalty, the Attorney General of the United States may institute a civil action to collect the penalty in an appropriate U.S. District Court. In such action, the validity and amount of the penalty are not subject to review by the court.
(n)
The Review Committee advises the Secretary and Congress on matters relating to sections 5, 6, and 7 of the Act and other matters as specified in section 8 of the Act. The Review Committee is subject to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.)
(a)
(b)
(1) Three members are appointed from nominations submitted by Indian Tribes, Native Hawaiian organizations, and traditional religious leaders. At least two of these members must be traditional Indian religious leaders. A traditional Indian religious leader is a person who, based on cultural, ceremonial, or religious practices, is recognized by an Indian Tribe as being responsible for performing cultural ceremonies or exercising a leadership role.
(2) Three members are appointed from nominations submitted by national museum organizations or national scientific organizations. An organization that is created by, is a part of, and is governed in any way by a parent national museum or scientific organization must submit a nomination through the parent organization. National museum organizations and national scientific organizations are organizations that:
(i) Focus on the interests of museums and science disciplines throughout the United States, as opposed to a lesser geographic scope;
(ii) Offer membership throughout the United States, although such membership need not be exclusive to the United States; and
(iii) Are organized under the laws of the United States Government.
(3) One member is appointed from a list of more than one person developed and consented to by all other appointed members specified in paragraphs (b)(1) and (b)(2) of this section.
(c)
(1) An affected party is either a:
(i) Museum or Federal agency that has possession or control of the human remains or cultural items, or
(ii) Lineal descendant, or an Indian Tribe or Native Hawaiian organization with potential affiliation to the human remains or cultural items.
(2) The Review Committee may make an advisory finding of fact on questions related to:
(i) The identity of an object as human remains or cultural items,
(ii) The cultural or geographical affiliation of human remains or cultural items, or
(iii) The repatriation of human remains or cultural items.
(3) The Review Committee may make an advisory recommendation on disputes between affected parties. To facilitate the resolution of disputes, the Review Committee may:
(i) Consider disputes between an affected party identified in paragraph (c)(1)(i) of this section and an affected party identified in paragraph (c)(1)(ii) of this section;
(ii) Not consider disputes among lineal descendants, Indian Tribes and Native Hawaiian organizations;
(iii) Not consider disputes among museums and Federal agencies;
(iv) Request information or presentations from any affected party; and
(v) Make advisory recommendations directly to the affected parties or to the Secretary.
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This document amends the U.S. Customs and Border Protection (CBP) regulations to eliminate customs broker district permit fees. Concurrently with this final rule, CBP is publishing a final rule to, among other things, eliminate customs broker districts (
Effective December 19, 2022.
Melba Hubbard, Chief, Broker Management Branch, (202) 863-6986,
Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that individuals and business entities must hold a valid customs broker's license and permit to transact customs business on behalf of others. The statute also sets forth standards for the issuance of broker licenses and permits; provides for disciplinary action against brokers in the form of suspension or revocation of such licenses and permits or assessment of monetary penalties; and, provides for the assessment of monetary penalties against other persons for conducting customs business without the required broker's license. Section 641 authorizes the Secretary of the Treasury to prescribe rules and regulations relating to the customs business of brokers as may be necessary to protect the public and the revenue of the United States and to carry out the provisions of section 641.
The regulations issued under the authority of section 641 are set forth in part 111 of title 19 of the Code of Federal Regulations (CFR) (19 CFR part 111) and provide for, among other things, fee payment requirements applicable to brokers under section 641 and 19 U.S.C. 58c(a)(7). The existing customs broker regulations are based on a district system in which ports within a district handle entry, entry summary, and post-summary activity, and for which a broker district permit is required.
On June 5, 2020, U.S. Customs and Border Protection (CBP) published a notice of proposed rulemaking (NPRM) in the
In a concurrent NPRM, published elsewhere in the same issue of the
Part 24 of title 19 of the CFR (19 CFR part 24) sets forth regulations concerning customs financial and accounting procedures. Section 24.22 describes the customs Consolidated Omnibus Budget Reconciliation Act (COBRA) user fees and corresponding limitations for certain services. Specifically, paragraph (h) of § 24.22 deals with the annual customs broker permit user fee. In this final rule, CBP has eliminated in §§ 24.22(h) and (i)(9), references to the customs broker district permit user fee, conforming with amendments in the concurrent final rule document, which eliminates broker districts and district permits.
In the concurrent NPRM, CBP had proposed to add a new definition in § 111.1 for a “Designated Center”, which was defined as the Center through which an individual, partnership, association, or corporation submits an application for a broker's license, or as otherwise designated by CBP for already-licensed brokers. After further consideration of how CBP will be processing broker matters and taking into account the public comments received with regard to the proposed definition, CBP has determined in the concurrent final rule document to modify the proposed definition to better align with current and future processes regarding brokers.
CBP has concluded that a definition of “Processing Center” much better reflects how CBP will manage broker applications and broker submissions.
Section 111.19 provides the procedures for obtaining broker permits, responsible supervision and control requirements for permits, and review procedures for the denial of a permit. Specifically, paragraph (c) describes permit fees. As CBP is eliminating district permits in the concurrent final rule document, this document makes conforming amendments to § 111.19 by eliminating fees for district permits. In addition, CBP has removed the specific permit application and permit user fee amounts and replaced the numerical figures with a reference to the relevant fee provision in § 111.96(b) and (c). CBP changed the proposed term “designated Center” to “processing Center”, as explained above, in § 111.19(c), and revised the second half of the second sentence of paragraph (c) to replace the reference to “online” submission of the fee payment with a reference to the use of a CBP-authorized EDI system. This last change was made to conform references to electronic submissions throughout part 111. In addition, CBP re-phrased the last part of the sentence in paragraph (c), without changing the meaning, to state that the fee needs to be submitted at the time the permit application is submitted. The changes to § 111.96(b) can be found in the concurrent final rule document.
Section 111.96 describes fees required throughout part 111. Paragraph (c) of § 111.96 describes the permit user fee. To reflect the elimination of broker districts and district permits, CBP has eliminated the customs broker district permit user fee, and specified that the user fee is applicable for national permits only, issued under § 111.19(a).
As discussed in the concurrent final rule document, CBP published an interim final rule that transferred certain trade functions from the port director to the Center director (
The authority for part 111 currently provides a specific authority citation for § 111.3. When the text of § 111.3 was transferred to § 111.2 in a final rule published in the
Upon further consideration, CBP has decided to adopt, with changes as described above, as final the proposed regulations published in the
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
As mentioned above, on June 5, 2020, CBP published in the
This final rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed this regulation. CBP has prepared the following analysis to help inform stakeholders of the impacts of this final rule.
Current customs broker regulations are based on the district system in which entry, entry summary, and post-summary activity are all handled by the ports within a permit district. In the concurrent final rule document, CBP is modernizing the regulations governing customs brokers to better reflect the current work environment and streamline the customs broker permitting process to save money. Under the terms of the concurrent final rule document, CBP is transitioning all brokers to national permits and expanding the scope of the national permit authority to allow national permit holders to conduct any type of customs business throughout the customs territory of the United States. By transitioning to a national permit, CBP is eliminating the requirement for brokers to maintain district permits and pay the annual user fee. Therefore, this final rule eliminates customs broker district permit annual user fees. CBP has prepared the following analysis to help inform stakeholders of the impacts of this final rule.
The customs territory of the United States is divided into seven customs regions. Within each region, the customs territory of the United States is further divided into districts; there are currently 40 customs districts.
The concurrent final rule document eliminates the district permitting process and automatically grants a national permit to each district permit holder who does not already hold a national permit. Going forward, licensed brokers have the option to apply for a single national permit either concurrently with their licenses or later in their careers. With this final rule in place, district permit user fees are eliminated, and brokers continue to pay permit fees only for national permits. Each district or national permit requires a one-time permit fee of $100 and an annual user fee.
The number of new permits issued each year depends, in part, on the number of new licenses issued. CBP issues both individual broker licenses as well as corporate licenses, which may be held by partnerships, associations, or corporations.
Brokers must pay an annual permit user fee for each permit held. The permit user fee is payable for each district permit and national permit a customs broker holds, including when a district permit is issued concurrently with the broker's license. As a result of the concurrent final rule document, district permits are eliminated and customs brokers only need to pay an annual user fee for a single national permit.
Under the baseline, both brokers holding existing permits and brokers issued new permits must pay the annual user fee for each permit held. As of January 2022, there were 15,226 active, licensed customs brokers.
Based on recent licensing history, CBP projects that over the period of analysis from 2022-2026, 2,072 new individual licenses and 75 new corporate licenses will be issued.
With the concurrent final rule document in place, newly licensed brokers choosing to hold a permit require only a single national permit. Therefore, CBP will issue 355 new permits over the period of analysis (
With the final rule in place, brokers currently holding only district permits or holding a national permit in addition to their district permit(s) continue to pay the annual user fee for a single national permit.
Combining both existing and projected permits, over the period of analysis brokers who hold permits will pay the user fee for 364 permits under the terms of the final rule. This includes 355 new national permits issued during the period of analysis in place of 396 new district permits (see Tables 2 and 3 above). An additional 9 existing district permits held by brokers only holding district permits under the baseline will be transitioned to national permits. Those 9 brokers will no longer pay for the 9 additional district permits currently held, which will be eliminated. Finally, 1,914 brokers who hold a national permit and at least one district permit under the baseline will only continue paying for their national permits and will no longer pay for 2,880 district permits. Overall, brokers will no longer pay for 3,035 district permits over the period of analysis. With a 2022 user fee of $153.19 per permit, brokers will save $2,281,330 from 2022-2026.
The elimination of the annual user fee for district permits does not result in any costs to brokers, but as noted above, this final rule yields the aforementioned savings.
The total annual monetized savings for customs brokers results from switching from a district permitting system to a national permitting system. Specifically, brokers will only pay the annual permit user fee for a single national permit instead of for each of the potentially several district permits held. As shown in Table 5 below, total savings over the period of analysis are approximately $2.3 million dollars.
Table 6 summarizes the monetized costs and benefits of this final rule to individual and corporate customs brokers. As shown, the total monetized present value net benefit of this final rule over a five-year period of analysis from 2022-2026 ranges from approximately $1.9 to $2 million and the annualized net benefit is approximately $456,000. In 2022, we estimate that 462 brokers will receive their broker licenses (447 individual licenses plus 15 corporate licenses). The adoption of this final rule will result in an average annual net benefit per broker in 2022 of $987 ($456,000 annualized net benefit/462 total new brokers for 2022).
The Regulatory Flexibility Act (5 U.S.C. 601
The final rule will apply to all customs brokers, regardless of size. Accordingly, the final rule will affect a substantial number of small entities. However, as stated above in section V.5 “Net Benefits,” the final rule will result in an average annualized savings per customs broker of $987. Since brokers, on average, will benefit as a result of this final rule, and the savings are relatively small on a per broker basis, it will not have a significant impact on customs brokers. Accordingly, CBP certifies that this final rule does not have a significant impact on a substantial number of small entities.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3507), an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collections of information contained in these
This regulation is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or that of her or his delegate) to approve regulations related to certain customs revenue functions.
Chris Magnus, the Commissioner of CBP, having reviewed and approved this document, is delegating the authority to electronically sign this document to Robert F. Altneu, who is the Director of the Regulations and Disclosure Law Division for CBP, for purposes of publication in the
Accounting, Claims, Exports, Freight, Harbors, Reporting and recordkeeping requirements, Taxes.
Administrative practice and procedure, Brokers, Penalties, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, parts 24 and 111 of title 19 of the Code of Federal Regulations (19 CFR parts 24 and 111) are amended as set forth below.
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 3717, 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1
Section 24.22 also issued under Sec. 892, Pub. L. 108-357, 118 Stat. 1418 (19 U.S.C. 58c); Sec. 32201, Pub. L. 114-94, 129 Stat. 1312 (19 U.S.C. 58c); Pub. L. 115-271, 132 Stat. 3895 (19 U.S.C. 58c).
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624; 1641.
Section 111.2 also issued under 19 U.S.C. 1484, 1498;
Section 111.96 also issued under 19 U.S.C. 58c, 31 U.S.C. 9701.
(c)
(c)
Approved:
U.S. Customs and Border Protection, Department of Homeland Security, Department of the Treasury.
Final rule.
This document adopts as final, with changes, proposed amendments to the U.S. Customs and Border Protection (CBP) regulations modernizing the customs broker regulations. CBP is transitioning all customs brokers to a single national permit and expanding the scope of the national permit authority to allow national permit holders to conduct any type of customs business throughout the customs territory of the United States. To accomplish this, CBP is eliminating broker districts and district permits, which in turn removes the need for the maintenance of district offices, and district permit waivers. CBP is also updating, among other changes, the responsible supervision and control oversight framework, ensuring that customs business is conducted within the United States, and requiring that a customs broker have direct communication with an importer. These changes are designed to enable customs brokers to meet the challenges of the modern operating environment while maintaining a high level of service in customs business. Further, CBP is increasing fees for the broker license application to recover some of the costs associated with the review of customs
This final rule is effective December 19, 2022.
Melba Hubbard, Chief, Broker Management Branch, (202) 325-6986,
Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that individuals and business entities must hold a valid customs broker's license and permit to transact customs business on behalf of others. The statute also sets forth standards for the issuance of broker licenses and permits; provides for disciplinary action against brokers in the form of suspension or revocation of such licenses and permits, or assessment of monetary penalties; and, provides for the assessment of monetary penalties against other persons for conducting customs business without the required broker's license. Section 641 authorizes the Secretary of the Treasury to prescribe rules and regulations relating to the customs business of brokers as may be necessary to protect importers and the revenue of the United States and to carry out the provisions of section 641.
The regulations issued under the authority of section 641 are set forth in part 111 of title 19 of the Code of Federal Regulations (19 CFR part 111) and provide for, among other things, the rules for license and permit requirements; recordkeeping and other duties and responsibilities of brokers; the grounds and procedures for the cancellation, suspension or revocation of broker licenses and permits, and monetary penalties in lieu of suspension or revocation; and, rules pertaining to the imposition of a monetary penalty, and fee payment requirements applicable to brokers under section 641 and 19 U.S.C. 58c(a)(7).
Customs brokers are private individuals and/or business entities (partnerships, associations, or corporations) that are licensed and regulated by U.S. Customs and Border Protection (CBP) to assist importers in conducting customs business. Customs brokers have an enormous responsibility to their clients and to CBP, which requires them to properly prepare importation documents, file these documents timely and accurately, classify and value goods properly, pay duties, taxes, and fees, safeguard their clients' information, and protect their licenses from misuse.
The existing customs broker regulations are based on the district system. A district is the geographic area covered by a customs broker permit other than a national permit. Customs brokers are currently required to maintain a physical presence within a district so that the broker is physically close to the ports of entry within the district in order to file any paperwork associated with an entry, entry summary, or post-summary activity. Entry, entry summary, and certain post-summary activities are customs business activities for which a district permit is required.
Two major developments, the establishment of the Centers of Excellence and Expertise (Centers) and the creation of the Automated Commercial Environment (ACE), have fundamentally changed the traditional ways that customs brokers and CBP interact. After a four-year transition of operational trade functions from ports of entry and port directors to Centers and Center directors, CBP published an interim final rule in the
The other relevant major development was the creation of ACE. In an effort to modernize the business processes essential to securing U.S. borders, facilitating the flow of legitimate shipments, and targeting illicit goods pursuant to the Customs Modernization Act (Mod Act) (passed as part of the North American Free Trade Agreement Implementation Act (NAFTA), Pub. L. 103-182 § 623 (1993)), and the Security and Accountability for Every (SAFE) Port Act of 2006 (Pub. L. 109-347, 120 Stat. 1884), CBP developed ACE to ultimately replace the Automated Commercial System (ACS) as the CBP-authorized electronic data interchange (EDI) system.
On October 13, 2015, CBP published an interim final rule in the
On April 21, 2021, the bi-annual customs broker license exam was administered at over 120 testing locations, and for the first time, via remote proctor delivery. CBP provided information regarding system requirements for the remote testing option, testing room requirements, and other general exam information on its website for prospective exam applicants.
On June 5, 2020, CBP published a notice of proposed rulemaking (NPRM) in the
CBP received 55 documents in response to the publication of the part 111 NPRM, two of which were duplicate submissions, and one of which was a two-part submission by one commenter discussing the same issue. In effect, 52 different documents were received. Commenters raised some concerns about the proposed changes and recommended changes for improvement, but overall expressed support of CBP's effort to modernize customs broker regulations, and welcomed the changes being made to reflect the reality of a rapidly changing world of international trade for both brokers and CBP. Commenters expressed appreciation for CBP's recognizing the broker community's needs to have clarity as to their duties and minimal regulatory burdens to target the essential needs to protect the revenue and enforce the relevant laws. The commenters further acknowledged CBP's efforts in providing the least bureaucratic framework over the years and collaborating with the broker community, including the latest effort in modernizing some of the outdated reporting requirements. For instance, one commenter welcomed the addition of specific language to cover convictions of committing or conspiring to commit an act of terrorism in § 111.53 as a ground for suspension or revocation of a license or permit. Commenters also supported the proposed removal of the
CBP recognizes a licensed broker's vital role in the international trade environment and in interactions with clients and CBP. A broker is tasked with the responsibility to exercise the highest level of accuracy and knowledge when filing entries, navigate the complex nature of international trade, ensure that the clients' needs are met timely and accurately, and facilitate the movement of legitimate cargo. Brokers need to be knowledgeable about the governing rules and regulations as well as any changes, maintain a good relationship with clients, and provide a high-quality service to their clients. CBP determined that it was important to modernize customs broker regulations and clarify existing regulations since the creation of Centers and the increasingly automated environment have changed the way customs business is conducted. Due to those changes, a broker may need to make contact with CBP personnel in parts of the customs territory that are not within the broker's district. The elimination of district permits and expansion of the scope of activities allowed under a national permit will provide brokers with the flexibility to easily conduct customs business anywhere within the customs territory of the United States. In addition, the elimination of district permits also eliminates the burden on brokers of maintaining permits for multiple districts or appointing subagents in districts in which they do not have permits. This change also provides cost savings for CBP when it comes to the processing of license and permit applications.
The changes made to the broker regulations will increase efficiency and flexibility as submission requirements are updated, additional electronic submission options are provided, and electronic communication options for certain submissions are added. This update of the regulations will further increase a broker's professionalism due to the addition of grounds to justify the denial of license in § 111.16, the addition of required information or arguments in support of an application during review of the denial of the application in § 111.19, and a new reporting requirement in § 111.30 for inactive brokers.
The submissions received in response to the NPRM contained comments on multiple topics regarding the proposed regulations. The public comments, together with CBP's analysis, were grouped by topic within a subpart of part 111, and are set forth below:
In order to better describe CBP's responsibilities for broker licensing and management issues, CBP changed the proposed term “Designated Center” to “Processing Center” in this final rule. A “Processing Center” means the broker management operations of a Center that processes applications for a license under § 111.12(a) and applications for a national permit under § 111.19(b) for an individual, partnership, association, or corporation, as well as submissions required in part 111 by already-licensed brokers.
Commenters also asked that CBP have a reporting structure in place to allow for an escalation process so brokers could properly address a designated broker management office. Some commenters argued that a broker should also have the opportunity to request a specific Center to align with the broker's business model familiar with the commodities, transactions and types of entry processes by the broker. Additionally, some commenters suggested that there should be an avenue for a broker to request re-assignment to a specific Center.
As mentioned above, current license and permit holders will continue to contact the BMO who has been processing brokers' licensing and permitting matters. Center personnel are ready and able to continue to do so. To ensure uniformity among Center personnel and efficiency in handling broker matters, BMOs at the various locations will continue to receive guidance from CBP Headquarters regarding the implementation of any updates or changes to current processes. CBP will continue to exercise oversight over the BMO locations to ensure that BMOs apply the same standards, and process broker submissions and respond to questions from brokers consistently and uniformly.
Regarding the request for CBP to consider a working group, CBP will continue general broker outreach and keep the broker community informed of any changes through various channels, such as Cargo System Messaging Service (CSMS) messages, webinars, and postings on CBP's website. Accordingly, a specific working group is not needed at this time.
Another commenter suggested that CBP utilize electronic reporting systems as the method of communication rather than designating a specific location. The commenter argued that flexibility of administration and effective communication are not dependent on location.
In response to the second commenter, CBP is already utilizing electronic reporting tools, such as ACE and the eCBP portal, and is using email when corresponding with a broker. The eCBP portal is CBP's new payment and submission system, streamlining the payment and submission process for broker examination applications and triennial status reports. Additional reporting capabilities for brokers will follow, as discussed in more detail below in Section IV. Despite the availability of the above-mentioned electronic reporting tools, a broker has the responsibility to establish an actual location for purposes of visits and audits but is free to determine where to establish his or her office(s) within the U.S. customs territory. CBP understands that flexibility is needed when it comes to establishing a primary office, especially during the COVID-19 pandemic, which caused many brokers to work from home. Thus, CBP appreciates the opportunity to clarify that the primary location does not have to be an office location but can be the broker's home as long as there is a physical location at which the broker can be reached.
With regard to the transition of the district permits to national permits, it is a one-time event and, thus, there is no need for including the transition to national permits in the regulations. Any new applicants for a national permit will apply pursuant to the final regulations.
It is CBP's goal to ensure that the communication between brokers and CBP (ports and Centers) is easy and
National permits cover local ports across the U.S. customs territory; thus, a broker may still perform customs business in a specific location if the broker so chooses. The national permit allows customs business within the entire U.S. customs territory and for brokers to perform any activities allowed under the permit, thus providing a broker with the choice of where to perform customs business and lessening the burden on a broker to work within the scope of a district permit for a geographic area. These regulatory changes will benefit the customs broker community without CBP's losing oversight over broker entities responsible for supervising their employees.
The commenter correctly pointed out that the role of a broker in a specific transaction depends on the broker's involvement and knowledge of the facts, thus, decisions as to what constitutes customs business are made in a case-by-case analysis to take into account the specific facts and circumstances. If a broker is unsure whether a certain transaction is considered customs business, he or she can request a ruling pursuant to 19 CFR 177.1.
With regard to the third scenario, the commenter noted that the use of statistical sampling methods is explicitly codified in the customs regulations, for instance, in 19 CFR 162.74(j), with respect to prior disclosures, and 19 CFR 163.11(c) with respect to customs audits. Thus, the regulations in part 111 would benefit from the inclusion of specific guidance regarding the acceptability of statistical sampling methods for the purposes of satisfying the responsible supervision and control standard of § 111.28(a) and the “due diligence” standard of § 111.39(b). The commenter further suggested to add the adequacy of a satisfying technique as a 16th factor for responsible supervision and control in § 111.28(a) that CBP may consider, and the final rule should also include specific guidance addressing the sampling methods that would be acceptable to CBP.
Regarding scenario (2), generally, classification determinations at the eight- and ten-digit HTSUS levels are considered customs business, and customs business must be conducted by a licensed broker. The term “resources” used by the commenter is vague and CBP is not able to fully respond to this comment as to whether such advice would constitute impermissible engagement in customs business. The commenter should seek a ruling to determine whether the specific proposal is permissible. However, in Headquarters ruling H272798 (January 27, 2018), CBP cautioned a requester, citing Headquarters ruling H115248 (August 28, 2011), that “even when there is a `possibility' that classification information will end up on an entry, a broker's license is required `to gather classification data which will be reflected on the entry.' ”
To respond to the commenter's third scenario, in general, the use of sampling methods is an adequate technique, but it depends on the circumstances of a particular situation whether a specific sampling technique is sufficient to ensure responsible supervision and control pursuant to § 111.28(a). The due diligence standard in revised paragraph (b) of § 111.39 requires that a broker ascertain the correctness of any information which the broker imparts to a client, thus, certain sampling techniques may or may not be appropriate to exercise due diligence, depending on the facts of the specific situation.
The commenter points to 19 CFR 162.74(j), which states that a private party may use statistical sampling to “disclose the circumstances of a violation” and for calculation of lost duties, taxes, and fees or lost revenue for purposes of prior disclosure, provided that the statistical sampling satisfies the criteria in 19 CFR 163.11(c)(3). Section 163.11 generally sets forth the “audit procedures” for CBP auditors pursuant to 19 U.S.C. 1509(b). CBP believes that those cited regulations are not geared towards broker audits; the notable difference being that the sampling results are submitted to CBP in a prior disclosure, whereas the results of a broker's own compliance activities (
The commenter also asked CBP to clarify in the regulations that applicants may be represented in their appeals by an attorney or other agents. The commenter stated that CBP recently eliminated language that appeals must be written in the applicant's own words; however, there is still confusion as to whether an applicant may contract with an attorney or others to assist with the appeal.
With respect to the “own words” language that the commenter refers to, results letters still include language that states that the examinee has to submit a compelling argument (“in your own words”) explaining why the examinee's answer is better than CBP's official answer, or why the appealed question has no possible correct answer. CBP continues to use this language in the results letters because it is expected that an applicant has the knowledge to draft the appeal document and provide arguments that support the appeal for a particular question. The focus of the appeal is of course on the articulation of why the answer provided by the examinee on the exam should be given credit. The written examination is a test of the applicant's knowledge of the pertinent material, not someone else's knowledge. A third person should not be the one to write the appeal on behalf of the examinee; CBP understands, however, that in some instances a third person may assist with formulating and/or submitting the appeal.
“Pertinent facts” in § 111.16(b)(5) are those facts that are requested on CBP Form 3124 when applying for a license, the facts gathered during the interview with the applicant, and during the background investigation. These are the same pertinent facts about which an applicant should not make a willful misstatement under the existing regulations. Those same facts should not be omitted, as the omission of those may be just as significant as a misstatement of those facts. The addition of the word “detrimental” along with the word “unfair” in § 111.16(b)(6) better reflects CBP's intent of including not only unfair transactions but also those that would be detrimental,
Lastly, CBP included a catch-all provision in § 111.16(b)(8) to account for any other relevant information that CBP uncovers over the course of the investigation that may influence CBP's decision to accept or deny a license application, but that is not mentioned in the non-exhaustive list in § 111.16(b)(1) through (7). Each application is reviewed individually, and because factors (1) through (7) do not cover every aspect that could lead to a denial of a license, a provision that covers any other relevant information is necessary to assist with CBP's determination.
Further, CBP welcomes the opportunity to clarify that current national permit holders are not required to provide a supervision plan pursuant to the new § 111.19(b)(8), however, CBP wishes to emphasize that having a supervision plan in place is highly encouraged and should be a best practice for every permit holder. The same applies to current district permit holders whose district permit will be transitioned to a national permit. As for single port or single office brokers who currently hold a district permit, or a national permit, a supervision plan is not required pursuant to the new regulations, but will be required of new permit applicants, even if they only have a single office or work at a single port.
Additionally, it is CBP's practice to send an informed compliance or warning letter to a broker who is not complying with regulations. Usually, CBP provides the broker an opportunity to address any issues that CBP had raised as a concern before revoking a permit. A broker will usually not lose a permit upon one incident of noncompliance unless the incident was so grave that CBP determines that a broker is no longer qualified to hold a license to exercise customs business.
CBP disagrees with the use of the CTPAT standard in this context. The CTPAT standard applies mainly to importers and cargo carriers who are partners of the CTPAT program. Very few brokers are CTPAT partners, therefore, this standard would not be applicable to the majority of brokers. Lastly, CBP wishes to take the opportunity to clarify that security incidents, such as a breach discussed here, that have any effect on the security posture of CBP must be reported electronically to the CBP Office of Information Technology (OIT) Security Operations Center (CBP SOC) at
Different commenters suggested different approaches as an alternative to the 72-hour requirement, such as an agreed upon time frame after the initial reporting of the fact that a breach occurred; reporting “as soon as practicable”; or, allowing for two weeks or ten (10) business days for the investigation and notification of the breach from the time of discovery. Another suggestion was to allow for a process similar to the one set forth in 19 CFR 162.74(b)(4) in the context of prior disclosures, providing information within 30 days of the initial disclosure date.
CBP does not agree with expanding the scope of disclosure of confidential information to additional scenarios. CBP cannot give advance authorization for the disclosure of importer records, as that authority lies with the client (importer). A broker is merely an agent of the importer, and the broker must obtain a written release from a client allowing for the sharing of client information with third parties for certain purposes, as the scope of client information to be shared is determined by the client. Written authorization for specific disclosures may be granted by the client to the broker as part of a power of attorney, or as a separate release.
One commenter pointed out that the proposed regulation does not contemplate that a broker may need to consult with an outside party, such as an attorney or consultant, or insurance underwriter/broker. The broker asserted that the broker should be able to discuss, and more importantly, disclose details of an incident, to an outside third party in the context of a damages claim by the client against the broker due to the broker's alleged error or omission.
Additionally, DHS representatives are specifically mentioned in current § 111.26, in the context of interference with the examination of records. By revising §§ 111.24 and 111.25 and adding a reference to DHS, CBP is creating consistency among the regulations that deal with a broker's recordkeeping responsibilities.
Part 111 sets forth the specific recordkeeping requirements applicable to brokers, and the records that each customs broker must create and maintain, and make available for CBP examination, in addition to the requirements in part 163. As explained above, CBP will continue its current practice of requiring that original records be maintained within the U.S. customs territory, in a manner that they may be readily inspected. The regulations permit either paper or electronic storage of original records, such that any other method is deemed alternative and requires written authorization.
One commenter recommended to delete “sufficient” and replace the language with a standard number that can be applied to all brokers. For example, if an office had more than 15 employees conducting customs business, then an additional broker would be required to maintain proper supervision and control. Another commenter suggested to have a certain number of brokers per number of employees conducting customs business.
One commenter stated that the regulation must be clarified, or otherwise removed, and added that even though CBP stated it will be providing guidance, this guidance would not be subject to review and comment, depriving the broker of any input on this issue.
Before CBP issues a suspension or revocation there is usually a history of a broker's failure to meet the supervision standard; in most cases, CBP does not automatically suspend or revoke a broker's license. There will be communication between the broker and CBP regarding the broker's failure to meet the supervision standard, and ways to mitigate that failure.
One of the commenters asked that any regulatory changes based on public comments be subject to review and comment by the public for a second time. CBP disagrees with this request. Pursuant to the Administrative Procedure Act (APA) (5 U.S.C. 551
Several commenters urged CBP to continue to consider all enumerated factors in assessing responsible supervision and control to avoid any arbitrary and capricious determinations and prevent inconsistent decisions by different CBP officers. The commenters argued that keeping “will” in the regulation provides transparency and uniformity for brokers in executing operations and procedures, as well as for CBP officers in administering and enforcing this standard. A change to “may” would allow CBP to focus on whichever factor it deems appropriate to the exclusion of additional factors that are clearly relevant as to whether a broker is exercising responsible supervision and control. CBP should be required to review all factors in order to ensure that a broker receives a full and fair evaluation.
A few commenters suggested to remove the new factors because the current ten factors are adequate to determine that a licensed broker has a real interest in the operations. One commenter referred to COAC recommendation No. 010021 (April 27, 2016), which recommends that CBP provide guidance to brokers regarding the ten factors demonstrating responsible supervision and control, such as how to properly train employees, issue appropriate written instructions and internal controls, maintain an adequate ratio of employees to licensed brokers based on certain factors, and engage in supervisory contact, audit and review operations. The commenter is of the opinion that CBP has not done so in the NPRM.
Lastly, commenters stated that the term “communications” in proposed factors (12) (communications between CBP and the broker) and (14) (communications between the broker and its officer(s)) is too broad. One commenter explained that proposed factors (12) and (13) (the broker's responsiveness and action to communications, direction, and notices from CBP) do not explain what type of communication is covered, and proposed factors (14) and (15) (the broker's responsiveness and action to communications and direction from its officer(s)) cover communications between parties to which CBP would have no visibility. One commenter posed the question whether CBP will regularly make available to customs brokers examples of communications relevant for verification and training purposes.
With respect to the term “responsiveness” in factors (13) and (15), a broker's failure to respond to any communications, direction and notices from CBP, and to communication and direction from its officer(s) or member(s) (
The term “communications” in the context of responsible supervision and control is used to assess how well and timely a broker is communicating with its officer(s) or member(s), and with CBP. CBP does not agree that examples of communications need to be provided to brokers for verification and training purposes. Brokers should be able to determine what, if any, communication is needed in a particular situation with CBP and officer(s) or member(s) of the broker entity.
To make the proposed language in § 111.28(a) more concise, CBP combined factors (12) and (13) into one new factor (12), which deals with the broker-CBP relationship, and combined factors (14) and (15) into one new factor (13), relating to the broker-officer/member relationship. In addition, CBP added a reference to “member(s)” in the new factor (13) to account for partnerships, in addition to associations and corporations as a type of broker entity.
CBP agrees with the commenter who states that this factor is intended to account for a broker's mistakes, however, a broker's responsibility includes a duty to verify any information received from an importer. The broker must exercise due diligence and make sure that the data from the importer is correct,
With respect to the second commenter, the reject rate pursuant to § 111.28(a)(4) covers rejections of entry summaries as discussed in the Customs Directive mentioned above, even though some of the items in this Directive have become obsolete.
Lastly, if a filer makes multiple filings, based on the same incorrect information, the system does count each instance of filing as a reject. CBP notes that if a broker makes the same mistake in several filings and receives the same error code or message, and the filings are rejected, the broker should be aware for future filings as to the error and how to properly submit an entry. Additionally, the broker may always
In addition, as mentioned above, CBP deployed a new portal for the electronic submission of and payment for the broker examination application, and the submission of the triennial report and payment of the triennial fee. In the case of the triennial reporting, if a broker files the status report and pays the required fee in the eCBP portal, CBP will send by email a receipt to the broker (if an email address is on file) evidencing the completion of the required reporting. A copy of the receipt and the filed report is maintained in the eCBP portal for the broker to access at any time. To provide all brokers the ability to receive an electronic receipt of the completion of the triennial reporting requirement, CBP added a broker's email address as a reporting requirement in § 111.30. Specifically, CBP added “email address” in the first sentence of paragraph (a) and added parentheses after “address information” in the third sentence to clarify that the office of record address, mailing address and email address are all required for purposes of reporting a change of address. CBP also added the email address requirement in paragraphs (d)(2)(i)(A) and (d)(2)(ii) for individual brokers, both actively engaged and not actively engaged. CBP further included the requirement of an email address for each licensed member or licensed officer in case of partnership, corporation, or association reporting in paragraph (d)(3)(i).
During the 2020/2021 triennial reporting period, approximately 90% of the licensed brokers filed the required report and paid the required fee through the new reporting tool. During that triennial reporting period, a broker had to choose to either pay online through the eCBP portal or at the port and had to submit both the report and the payment through one of the chosen options; a broker could not submit the report online and pay the fee at the port, or vice versa. For the next triennial reporting period in 2023/2024, CBP will continue with the same practice.
A broker who chooses to pay the fee at a processing Center,
The commenter recommended that to the extent that CBP asserts that this documentation is still required, the regulation should be amended to be more consistent by requiring submission of both the name change and fictitious name authorization after the fact, rather than prior to use, and the requirement should apply only to the licensee's state of incorporation and office of record.
CBP disagrees with the commenter's second request to limit a broker's responsibility to customs laws and exclude any other laws. A broker must be knowledgeable as to international trade laws, customs laws and regulations, and general customs practices that concern entry filings, admissibility, classification, valuation of merchandise, as well as duty rates for imported merchandise, and excise tax, among other areas of expertise. In conducting its business, the customs broker might become aware of the attempted importation of illegal merchandise or perhaps import/export schemes violating certain laws, that reach beyond what might traditionally be thought of as `customs' laws.
Although CBP regulates the general requirements applicable to bonds, which must be met by either the bond principal or the surety, CBP does not regulate the terms of the relationship between the bond principal and the surety, and thus a surety is not included as a party from whom a broker may obtain a power of attorney under § 111.36. The function of the bond regulations is to protect the revenue and ensure compliance with the laws and relevant regulations. The contractual terms agreed upon by a surety and the bond principal, which relate to matters other than bond coverage, bond conditions etc., are beyond the purview of CBP. Information sharing between bond principals and sureties, and their rights against each other over a particular entry, are thus to be decided by contract, and not by the terms of customs regulations pertaining to bonds (part 113) or brokers (part 111).
In addition, CBP does not agree with the suggested revisions to paragraph (c)(2). Existing paragraphs (c)(2)(i) and (ii) set forth minimum requirements for a broker to communicate certain information to an importer or other party in interest to allow for transparent billing. These requirements may be included in an agreement between the parties involved in a transaction, but also need to be spelled out in the regulation to emphasize that the conditions regarding the compensation of a freight forwarder for referring a brokerage business need to be made known and available to the importer. Lastly, CBP does not agree with the revision in paragraph (c)(3) for the reasons mentioned above. Brokers must fulfill the requirements in the regulations; the conditions as to document submission and payments to the broker may be spelled out in an agreement between the parties, but it is important to have regulatory requirements that bind parties.
CBP received supporting comments regarding the proposed changes to subpart D of part 111. Specifically, one commenter supported the proposal in § 111.53 to add a new paragraph (g) to provide an additional ground for the suspension or revocation of a license or permit to cover convictions of committing or conspiring to commit an act of terrorism as described in section 2332b of title 18 of the United States Code (
However, CBP does agree that a 60-day delayed effective date is beneficial for both the brokers to make any needed changes to the business, and for CBP to transition all district permit holders to a national permit and to ensure that CBP personnel are aware of and ready to work with the new changes imposed by the final rule.
In the NPRM, CBP proposed to revise § 111.2(b) by removing the four exceptions to the district permit requirement in order to transition to a national permit system. As part of the proposed revision, CBP will remove the cross-reference in § 111.2(b)(2)(i)(C) to subpart B of part 143 of the CBP regulations, which sets forth the regulations regarding remote location filing (RLF). No comments were submitted by the public regarding these proposed changes, whereby the use of a national permit would obviate the need for standalone RLF regulations. It should be noted that the RLF requirements that are mandated by 19 U.S.C. 1414 are captured in the proposed transition to national permits for all licensed brokers, as the national permit framework includes the expansion of the scope of a national permit to all customs business within the United States and would allow filings to be made electronically from anywhere in the United States. Once the final rule becomes effective, customs brokers will not be subject to the RLF regulations and, in a future rulemaking, CBP will propose amending the standalone RLF regulations in subpart B of part 143 to remove those provisions which have become moot and make any other changes that may be needed.
In reviewing the proposed changes to the regulations, as well as existing regulations, CBP identified certain technical changes that would provide more flexibility to the brokers, clarify CBP's intent of certain regulatory language, and improve the electronic submission process, which are set forth below.
In § 111.12(a), CBP added the option for electronic submission of license applications. CBP is in the process of developing the capability for the submission of license applications to the eCBP portal and wants the regulatory language to accommodate this future change. In addition, CBP added the option for electronic submission of withdrawals of license applications in redesignated paragraph (b) as an alternative to the current method of submission to the processing Center. As soon as CBP deploys this additional capability, applicants will have two options for the submission of application withdrawals.
To reflect in the regulation the option of a remote exam, as explained above, CBP modified the language in the last sentence of § 111.13(b) to state that CBP will give notice of the exact time and place for the examination, including whether alternatives to on-site testing will be available. In § 111.14(a)(3), CBP corrected a minor error that occurred in the published NPRM in the phrase “(including a member or a partnership or an officer of an association or corporation)”. With this final rule, CBP replaced the first instance of “or” in the above phrase with the word “of” to accurately reflect the meaning of the phrase.
In § 111.17(c), CBP slightly modified the language for clarity and replaced “the date of entry of the Executive Assistant Commissioner's decision” with “the decision date by the Executive Assistant Commissioner”. This technical change does not change the meaning or substance of the sentence.
CBP slightly modified the language in the fifth sentence of § 111.19(b) to clarify that a broker has two options for submitting the permit application, by submitting a letter either to the processing Center or electronically through a CBP-approved EDI system.
In the first sentence of § 111.19(e)(1), CBP replaced the phrase “in support of the denied application” with the phrase “in support of the application”, removing the word “denied.” This technical change does not change the meaning or substance of the sentence. Moreover, this change better aligns the regulatory language in § 111.19(e)(1) with (e)(2). The proposed term “denied application” is not used anywhere else in the regulation, thus, it is replaced for clarity purposes.
Further, in § 111.19(e)(2), CBP slightly modified the language for clarity at the end of the sentence and replaced “the date of entry of the decision” by the Executive Assistant Commissioner with “the decision date” by the Executive Assistant Commissioner. This technical change does not change the meaning or substance of the sentence.
In § 111.19(d), CBP added the phrase “the application” after “will review” to further clarify that the processing Center that receives the application will review the application to determine whether the applicant meets the eligibility requirements for a national permit to be issued. This clarification does not change the meaning or substance of the sentence.
In § 111.28 (responsible supervision and control), CBP revised the language in (a)(3) and (5) to provide more clarity. Factor (3) is revised to read as “The volume and type of business conducted by the broker”, and factor (5) is revised to read as “The level of access a broker's employees have to current editions of CBP regulations, the Harmonized Tariff Schedule of the United States, and CBP issuances.” There is no change to any of the substantive regulatory requirements for customs brokers. In addition, CBP replaced the word “broker” with “brokerage” at the end of the sentences in (a)(9) and (a)(10) to better reflect the meaning of the factors.
In § 111.28(b)(2) and (3), CBP replaced the word “employees” with “employee(s)”, where appropriate, for consistency throughout the two paragraphs. This technical change does not change any of the substantive reporting requirements for customs brokers.
Further, in § 111.30(d)(1), CBP removed the proposed language “accompanied by payment or valid proof of payment of the triennial status report fee prescribed in § 111.96(d).” and replaced it with simpler language that reflects the current and future process of submissions of triennial status reports to CBP,
In addition, CBP did not adopt the proposed language of “submits payment or proof of payment of” in the third sentence of § 111.30(d)(4) but kept the existing language of “pays” as it better reflects CBP's practice, as explained above. CBP added “and pay the required fee” in the fourth sentence of § 111.30(d)(4) to align the language with the language in the prior sentence that talks about filing the required report and paying the required fee for the license to be reinstated. The fourth sentence sets forth the consequence of revocation by operation of law if the broker does not file the required report and pay the required fee.
CBP also amended the first sentence of § 111.30(e) and added phone number and email address to the already required information of name and address for the individual who has legal custody of the records after the termination of the brokerage business. Adding the email address and telephone number to the methods for communicating with CBP will expedite communication and facilitate resolution of any questions. Communication in current times is typically conducted by phone or email, thus, adding these two options will benefit both CBP and the recordkeeping individual. Moreover, an email address and telephone number are often already included when brokers provide information to CBP, as those are preferred methods of communication.
In § 111.39(a), covering advice to a client, in the first sentence, CBP added the phrase “it conducts on behalf of” for clarification, but this change will not have an impact on the substantive regulatory requirement for customs brokers to not withhold any information relative to the customs business that the broker is conducting on behalf of a client.
In addition, CBP revised the last sentence of paragraph (a) of § 111.96 and removed references to a CBP fingerprint processing fee since this is not a fee that CBP collects. The only fee that is collected for the processing of fingerprints is one charged by the Federal Bureau of Investigation.
CBP simplified the proposed language in § 111.96(d) regarding the triennial
Finally, while the general topic of this rulemaking covers customs revenue functions delegated to the Secretary of Homeland Security by the Secretary of the Treasury, this document also includes certain fees over which the Secretary of the Treasury retains authority, as provided for in 19 CFR 0.1(a) and paragraph 1(a)(i) of Treasury Department Order 100-16. Accordingly, this final rule is also being signed by the Secretary of the Treasury (or his or her delegate).
In addition to finalizing the proposed regulations, CBP announces in this final rule the deployment of a new payment and submission system, the eCBP portal. The development of the eCBP portal is part of CBP's Electronic Payment Options (ePO) effort that addresses the revenue collections capability gaps of limited payment options, inefficient manual processes, and disparate revenue systems. This effort's goal is to eliminate manual processes and standardize processes, reduce cash and check collections at ports of entry and provide more online payment options, integrate data with cargo systems, reduce wait times at ports of entry, and provide better and more accessible data, all of which aligns with recommendations by COAC and other trade stakeholders.
This new payment and submission system streamlines and validates data, which in turn reduces errors and provides data to support security-related decision making by CBP personnel. Using the eCBP portal means fewer cash transactions, which means lower risk of cash losses. Additionally, this technological advancement enhances CBP revenue collection capability and permits greater focus on law enforcement and trade facilitation.
The eCBP portal's electronic submission and payment options offer brokers the flexibility and convenience to easily and efficiently manage their reporting responsibilities. Currently, the eCBP portal is being used for the submission and payment of broker examination applications and triennial status reports. Additional enhancements, such as the electronic submission of and payment for broker license applications and permit applications, and the payment of annual user permit fees, will follow, and CBP will announce those additional eCBP functionalities in the
CBP deployed eCBP's functionality to receive broker examination applications on August 19, 2019. CBP announced this new payment system through CSMS messages, on CBP's website, through tweets, and in webinars offered to the broker community. This new payment portal was well received by the broker community, and by the end of fiscal year 2019, CBP had successfully processed more than 1,300 broker examination applications in the eCBP portal, resulting in a significant reduction of personnel hours in CBP Headquarters and at ports processing applications and withdrawals of applications.
After a successful testing phase between December 2017 and May 2018, on December 15, 2020, CBP deployed the capability to file the triennial status report in the eCBP portal by completing the online form and submitting the triennial fee. Approximately 90% of the status reports for the 2020/2021 reporting period were submitted electronically. It is important to note that with this new functionality, customs brokers now have two options to file the triennial report and fee: they may use the new portal or submit the report and fee at a location where their broker license was issued. An additional current functionality of the new eCBP portal is the automatic processing of license suspensions and revocations for unpaid triennial status reports, which was deployed to the portal in February 2021. However, even though this is an automatic process, the list of unpaid reports is manually validated by CBP personnel prior to suspension or revocation. As the eCBP portal is tied to ACE, this new interface also allows ACE to receive the triennial report data and apply any updates regarding the triennial report information and payment information to the broker account in ACE.
Customs brokers who want to use the eCBP portal, found on CBP's website, must create a
Based on the analysis of the comments received and further consideration, CBP has decided to adopt as final the proposed regulations published in the
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed this regulation.
This rule will result in costs to licensed customs brokers in the form of additional fees and reporting requirements. CBP estimates that these costs total $88,850. This rule will also result in benefits to licensed customs brokers in the form of reduced fees and reduced time burdens. CBP will also benefit from time savings. CBP estimates that the monetized savings of the rule total $1,277,116. The five-year total monetized net benefit of the rule ranges from $973,616 discounted at 7 percent to $1,088,308 discounted at 3 percent. In addition, unmonetized benefits include increased professionalism of the broker industry, greater clarity for brokers in understanding the rules and regulations by which they must abide, better data security, and better reporting of potential fraud to CBP.
As mentioned above, CBP published the proposed rule titled, “Modernization of the Customs Brokers Regulations,” on June 5, 2020, and received 55 comments from the public.
CBP has prepared the following analysis to help inform stakeholders of the impacts of this rule.
As
The primary purpose of this final rule is to formalize recent changes in the permitting of licensed customs brokers. To take advantage of new technologies and reflect a changing trade environment, CBP is switching from a district permit system to a national permit system. Licensed brokers who have traditionally been required to apply for and operate under a permit for each district in which they do business may now work under a single, national permit.
The rule also finalizes changes in the license application fee charged by CBP, which CBP will increase to cover a greater portion of the costs CBP has always faced. Because these costs are being moved from CBP to brokers, they are considered a transfer. The rule contains several provisions meant to professionalize the broker industry, formalize current practices into regulations, and adapt regulations to reflect technological advancements. Finally, in this final rule, CBP announces the deployment of a new payment and submission system, the eCBP portal.
In this final rule, CBP is making several changes to address comments received from the public in response to the NPRM, as well as clarifying existing regulatory language. These include:
• Changing the definition of “Designated Center” by changing the name to “Processing Center;” and explaining that processing Center means the broker management operations of a Center;
• Removing references to a “director,” to reflect the fact that other
• Updating § 111.12 to allow the electronic submission and withdrawal of the customs broker license application;
• Updating § 111.13 to account for a remote option for the customs broker exam;
• Updating § 111.21 to require brokers to report a breach as well as any known compromised importer identification numbers within 72 hours, in addition to requiring submission of any additional known compromised importer identification numbers within 10 business days;
• Consolidation of proposed responsible supervision and control factors 12 and 13 in § 111.28(a) into a single factor (12), and factors 14 and 15 into a single factor (13);
• Addition of an email address requirement to § 111.30.
Monetized costs for customs brokers will result from no longer receiving a first district permit concurrent with a broker's license, and the requirement for brokers to notify CBP when separating from a client relationship due to attempted fraud or criminal acts. Customs brokers who do not concurrently receive their first district permit with their broker's license will save the cost of district permit fees. Additionally, CBP and customs brokers will save time applying for and reviewing district permit applications and waivers. The five-year total monetized net benefit of the rule ranges from $973,616 discounted at seven percent to $1,088,308 discounted at three percent. The annualized cost is approximately $237,500 using both three and seven percent.
Customs brokers are private individuals and/or business entities (partnerships, associations, or corporations) licensed and regulated by CBP to assist importers in conducting customs business. Customs brokers have an enormous responsibility to their clients and to CBP, requiring them to properly prepare importation documentation, file documents accurately and on-time, correctly classify and value goods, pay duties, taxes, and fees, safeguard their clients' information, and protect their licenses from misuse.
In an effort to perform these duties efficiently, customs brokers have embraced recent technological advances such as making the programming and business process changes necessary to use ACE, thus providing a single, centralized access point to connect CBP and the trade community. Through ACE, manual processes are streamlined and automated, and the international trade community is able to more easily and efficiently comply with U.S. laws and regulations.
CBP has also endeavored to embrace these technological advances to not only more efficiently perform its duties of facilitating legitimate trade while making sure that proper revenue is collected, but also to provide more efficient tools for customs brokers to file and monitor the information submissions necessary for a timely and accurate entry filing. One of the central developments that will allow CBP to perform its operational trade functions more effectively is the transition to the Centers.
Beginning in 2012, CBP developed a test to incrementally transition the operational trade functions that traditionally reside with port directors to the Centers. The Centers were established in strategic locations around the country to focus CBP's trade expertise on industry-specific issues and provide tailored support for importers. CBP established these Centers to facilitate trade, reduce transaction costs, increase compliance with applicable import laws, and achieve uniformity of treatment at the ports of entry for the identified industries. On December 20, 2016, CBP published an interim final rule in the
Current broker regulations are based on a district system in which entry, entry summary, and post-summary activity are all handled by the ports within a permit district. With the transfer of trade functions to the Centers, a significant portion of these activities, including entry summary and post-summary, are now handled directly by the Centers. The Center structure is based on subject matter expertise, as opposed to geographic location, placing them outside of the district system as it currently exists. With this rule, CBP will modernize the regulations governing customs brokers to better reflect the current work environment and streamline the customs broker permitting process.
It is the responsibility of CBP to ensure that only qualified individuals and business entities can perform customs business on behalf of others. CBP accomplishes this task by only issuing broker licenses to individuals and business entities that meet the below criteria:
• Must submit a customs broker license application within three years of taking and passing the customs broker license examination;
• Must be a U.S. citizen and attain the age of 21 prior to submitting the license application;
• Must possess good moral character; and
• Must pay the requisite fee.
Business entity customs broker license eligibility:
Currently, CBP requires all prospective brokers, both individuals and business entities, to submit CBP Form 3124:
The customs territory of the United States is divided into seven customs regions. Within each region, the customs territory of the United States is further divided into districts; there are currently approximately 40 customs districts.
A broker who intends to conduct customs business at a port within a district for which the broker does not have a permit must submit an application for a district permit in a letter to the director of the port at which the broker intends to conduct customs business. Each application for a district permit must set forth or attach the following:
• The applicant's broker license number and date of issuance;
• The address where the applicant's office will be located within the district and the email address and telephone number of that office;
• A copy of a document which reserves the applicant's business name with the State or local government;
• The name, broker license number, office address(es), telephone number, and email address of the individual broker who will exercise responsible supervision and control over the customs business transacted in the district;
• A list of all other districts for which the applicant has a permit to transact customs business;
• The place where the applicant's brokerage records will be retained and the name of the applicant's designated recordkeeping contact; and
• A list of all persons who the applicant knows will be employed in the district with all the required employee information.
The applicant for the district permit must have a place of business at the port where the application is filed or must have made firm arrangements satisfactory to the port director to establish a place of business and must exercise responsible supervision and control of that place of business once the permit is granted. Instead of a customs broker getting multiple district permits, he or she could also apply for a national permit for the purpose of transacting customs business in all districts within the customs territory of the United States as defined in 19 CFR 101.1. The national permit application may be submitted concurrently with or after the submission of an application for a broker's license.
CBP first introduced national permits in 2000 to allow a broker to conduct a limited set of activities in districts for which the broker does not have a district permit. When it was first introduced, a national permit allowed licensed brokers to place an employee in the facility of a client for whom the broker is conducting customs business; file electronic drawback claims; participate in remote location filing; and make representations after the entry summary has been accepted. In the years since the national permit was introduced, and with the full implementation of ACE, almost every activity performed under a district permit was added to the national permit. Only those activities, such as the filing of paper entries and certain payment submissions that require physical presence at a port, currently require a district permit instead of a national permit. With the national permit system, these restrictions will no longer apply. This rule will allow a national permit holder to conduct any type of customs business in all districts within the customs territory of the United States. This represents a full expansion of the activities allowed under a national permit. CBP has determined that in the increasingly automated environment brokers may need to make contact with CBP personnel across the customs territory and there is no longer a reason to restrict national permit holders.
Currently, an applicant for a national permit must submit payment of the application fee and user fee to the port where the license was issued, and then submit the national permit application in the form of a letter, including evidence of payment, to the Broker Management Branch.
• The applicant's broker license number and date of issuance;
• If the applicant is a partnership, association, or corporation, the name and title of the national permit qualifier;
• The address, telephone number, and email address of the office designated by the applicant as the broker's office of record; that office will be noted in the national permit when issued;
• A copy of a document which reserves the applicant's business name with the State or local government;
• The name, telephone number, and email address of the licensed broker or knowledgeable employee to be available to CBP to respond to issues related to the transaction of customs business;
• The name, broker license number (if designated), office address, telephone number, and email address of each individual broker who will exercise responsible supervision and control over the customs business of the applicant under the national permit;
• A supervision plan describing how the broker will exercise responsible supervision and control, including compliance with § 111.28 (
• The place where the applicant's brokerage records relating to customs business conducted under the national permit will be retained and the name of the applicant's designated recordkeeping contact (
• The name, telephone number, and email address of the knowledgeable employee responsible for broker-wide records maintenance and financial recordkeeping requirements;
• A list of all employees of the broker, together with the specific employee information prescribed in § 111.28(b) for each of those employees (19 CFR 111.28(b)); and
• A receipt or other evidence showing that the fees specified in § 111.96(b) and (c) have been paid (19 CFR 111.96(b) and (c)).
In an effort to modernize the permitting process for customs brokers, this rule eliminates the district permitting process and automatically grants each current district permit holder a national permit.
Currently, customs brokers who do not have a national permit must maintain an office and have a separate district permit for each district in which the broker wants to conduct customs business. For some brokers, this means having many small offices across the country. This rule removes the requirement to have a separate local office in each district in which customs brokers do business. Since, under a national permitting structure, customs brokers are no longer required to have a representative in each district in which they conduct customs business, brokers could organize themselves to better suit their specific business needs. While some brokers may consolidate their office locations and save on overhead costs, which may also involve laying off local staff, others may expand their business operations or staffing needs as they will now be able to serve more ports without needing a local office. CBP cannot predict whether customs brokers as whole would experience net savings as a result of these changes. For the purposes of this analysis, CBP does not believe that brokers will greatly expand or contract their holdings as a result of the rule. In the case that some brokers do ultimately close offices, they will likely experience cost savings and the net benefit estimated in this analysis would increase. Since national permits were first issued, there has not been a noticeable change in the number of brokers hired as a result of national permits, so CBP does not believe there will be a significant change due to this rule.
In response to the NPRM, one commenter predicted that a national permit system would lead to reduced competition and lost revenue at ports. However, because this rule will not reduce the volume of trade, and goods must still physically arrive at various ports, CBP does not believe this to be the case. Another commenter noted that a national permit system would devalue the broker license and force small businesses to close. CBP disagrees with this assertion. In fact, small businesses may benefit more from a national permit, allowing them to work in ports across the country and in which they could not previously afford to maintain a physical presence. Brokers who find they are more competitive with a physical presence at a given port may still maintain a local office.
CBP's Broker Management Branch provided historical data from 2015-2021. As of January 2022, there are 15,226 active, licensed customs brokers. CBP also issued new broker licenses each year to both individuals and corporations.
As of January 2022, there are 2,365 permitted brokers holding a combined total of 3,345 active district permits. These 2,365 brokers represent about 15.5 percent of all brokers, as the majority of brokers never apply for their own permit and work under the auspices of a corporate permit. Approximately two percent of brokers hold a corporate permit, meaning 13.5 percent of brokers hold individual permits. The brokers who do hold permits average approximately 1.4 district permits per permit holder. Using these figures and historic rates of decline, we can project how many licenses and district permits licensed brokers will be issued over the period of the analysis, under the baseline condition (
In this rule, CBP is finalizing regulatory changes that include: increasing fees for the customs broker license application; eliminating district permits so each customs broker only needs one national permit to conduct customs business; mandating that each broker must provide notification to CBP of any known breach of records within 72 hours of discovery;
CBP currently charges $200 fees per individual or business entity for the broker license application. These fees are used to offset the costs associated with servicing the brokers. Based on a fee study, entitled “Customs Broker License Application Fee Study,” CBP has determined that these fees are no longer sufficient to cover its costs.
The study found that fees of $463 and $815 are necessary to recover the costs associated with reviewing the customs broker license application for individuals and business entities, respectively. These fees, however, are significantly higher than the current fees of $200 for both individuals and business entities and, if implemented, these fee rates could become an economic disincentive to those pursuing a career as a customs broker. Therefore, in an effort to minimize the financial burden to prospective customs brokers while also recovering a larger portion of the costs associated with reviewing and vetting the license application, CBP has decided to limit the license application fee to $300 for individuals and $500 for business entities; the remainder of the costs would continue to be covered by appropriated funds. In response to the NPRM, one commenter expressed concern that raising application fees would reduce the number of qualified candidates applying for broker licenses. CBP has considered this factor in deciding to limit the amount by which the fee will increase in order to cover more of CBP's costs and account for inflation without adding too much to the cost burden for brokers. CBP considers this increase in the fee to be a reasonable compromise position between not raising the fee at all and raising it to a level necessary to recover the full costs.
In response to the NPRM, one commenter noted that automation and improved technology should obviate the need for a fee increase. The fee increase is necessary, however, because CBP has not been covering costs for many years. Technology improvements and automation also require initial investments and ongoing maintenance costs for computer systems and databases, which were included in CBP's estimation of appropriate fees. Another commenter suggested that fees should be charged on port activity, not district. As discussed above in Section II,
When assessing costs of final rules, agencies must take care to not include transfer payments in their cost analysis. As described in OMB Circular A-4, transfer payments occur when “. . . monetary payments from one group [are made] to another [group] that do not affect total resources available to society.” Examples of transfer payments include payments for insurance and fees paid to a government agency for services that an agency already provides. CBP's processing of the customs broker license application is an established service that already requires a fee payment. As such, adjustments to the fee associated with providing each service is considered a transfer payment. Currently, any costs not covered by fees are paid via funds appropriated to and expended by CBP. The increased fees paid by brokers would replace appropriated funds. CBP recognizes that the fee changes may have a distributional impact on prospective customs brokers. In order to inform stakeholders of all potential effects of the final rule, CBP has analyzed the distributional effects of the rule in section “3.12 Distributional Impacts.”
Currently, brokers are required to pay a $100 permit application fee in connection with each permit application by either an individual or corporation. The applicant has the option of concurrently receiving its first
(1) The applicant's broker license number and date of issuance;
(2) The address where the applicant's office will be located within the district and the telephone number of that office;
(3) A copy of a document which reserves the applicant's business name with the State or local government;
(4) The name of the individual broker who will exercise responsible supervision and control over the customs business transacted in the district;
(5) A list of all other districts for which the applicant has a permit to transact customs business;
(6) The place where the applicant's brokerage records will be retained and the name of the applicant's designated recordkeeping contact; and
(7) A list of all persons who the applicant knows will be employed in the district, together with the specific employee information for each of those prospective employees.
As a result of this rule, the options above pertaining to district permits will no longer exist and all permitted brokers will have to get a single national permit to conduct customs business. That means that brokers will pay the $100 permit application fee and receive a single national permit; brokers who, absent this rule, paid to hold multiple district permits will save the $100 district permit fee for each additional permit. This is considered a cost savings, and not the elimination of a transfer payment, because the $100 district permit fee reflects the economic activity undertaken by CBP to issue those permits. The elimination of the fee represents a savings both to the individual brokers as well as to society as a whole as the underlying work to process the additional district permits is eliminated.
As shown in Table 3 above, absent this rule, there would be 2,147 total new broker licenses (75 corporate + 2,072 individual) issued over the period of analysis from 2022 through 2026. Of these 2,147 licenses, 75 would be issued to corporations which would result in 105 corporate district permits (as mentioned above, each customs broker permit holder currently has 1.4 district permits on average). Additionally, as mentioned above, 100 percent of corporations exercise the option of concurrently receiving their first district permit with their customs broker's license, therefore saving the $100 permit application fee for their first district permit. This means that, absent this rule, corporations would get 75 permits for free and would then have to pay for the remaining 30 permits for a cost of $3,000 ($100 permit application fee * 30 corporate permits). As a result of this rule, these 75 corporate brokers will each have to get a single national permit and pay the $100 permit application fee for each national permit for a total cost of $7,500 (75 national permits * $100 permit application fee). This results in an additional cost to these corporate brokers of $4,500 ($7,500 − $3,000) over the period of the analysis from 2022 through 2026. Please see Table 4 below for a breakdown of these costs.
As shown above in Table 3, if this rule were not in effect there would be 2,072 new individual broker licenses resulting in 396 new individual permits over the period of analysis. According to CBP's Broker Management Branch, individual brokers do not get their first district permit issued concurrently with their customs broker's licenses nearly as often as corporations. Approximately two percent of individual customs broker license holders, or 42 of the estimated 2,072 new brokers, get their first district permit issued concurrently with their broker's license, saving the $100 permit application fee charged for the first district permit. Using the average of 1.4 district permits per customs broker permit holder, we estimate that these 42 individual customs brokers would get 59 district permits over the period of the analysis if this rule did not go into effect. Since, under the baseline, the brokers would get 42 out of the 59 permits for free, brokers would have to pay for the remaining 17 permits for a cost of $1,700 ($100 permit application fee * 17 permits). Under this rule, these 42 individual brokers would each need a single national permit for a total of 42 permits resulting in a total cost of $4,200 ($100 national permit application fee * 42 national permits). As a result of this rule, two percent of individual brokers will bear an additional total cost of $2,500 ($4,200 − $1,700) over the period of analysis. Please see Table 5 below for a breakdown of these costs.
The remaining 98 percent of individual customs broker license holders do not get their first district permit concurrently with their broker's license, if they get any permits at all. Of the 15,226 active licensed brokers, approximately 15.5 percent hold at least one permit. Because only 15.5 percent of license holders hold a permit, and two percent of those are corporate license holders and only two percent are individuals who get a permit concurrently with their license, the remaining 11.5 percent are individual licensed brokers who apply for and receive a permit after their license is issued. Accordingly, under the current permit system, using an average of 1.4 permits per broker, 238 individual customs broker permit holders pay $33,600 for 336 permits because they pay the $100 fee for every permit.
Any brokers who apply for more than one permit will experience a time savings as a result of this rule because they will only need to apply for a single permit. According to CBP's Broker Management Branch, currently, brokers spend approximately three hours to collect and submit the appropriate documentation to CBP.
Corporate brokers would also see time savings resulting from fewer permit applications prepared and submitted. Table 4 shows that corporate brokers currently apply for, receive, and pay $100 for 30 permits after their licenses have been issued. Table 8 shows the removal of the application for these permits will result in a monetized time savings worth $3,133, based on CBP's estimated fully loaded hourly time value for customs brokers of $34.81.
Relatedly, CBP would see benefits due to the elimination of the district permit application review process. CBP estimates that it takes two hours of CBP processing, including time to review and approve an application and create and deliver the permit to the applicant.
Lastly, the district permit waiver described in current § 111.19(d)(2) would be eliminated with the rule. Currently, requests for a waiver of the requirement for an individual broker in the district must be submitted to the port director and include a description of responsible supervision and control procedures and information on the volume and type of customs business conducted. The port director reviews the request and makes a recommendation to headquarters. Headquarters reviews and issues the decision.
Table 13 provides a summary of the costs and savings resulting from the removal of the district permit application and $100 fee over the period of analysis.
Each broker must keep current, in a correct and itemized manner, records of accounts reflecting all of his or her financial transactions as a broker. The broker must keep and maintain on file copies of all correspondence and other records relating to customs business. With this rule, each broker must provide notification to the processing Center of any known breach of electronic or physical records relating to customs business. Notification to CBP must be provided within 72 hours of the discovery of the breach with a list of all known compromised importer identification numbers. CBP received several comments on the potential difficulty of reporting a breach and compromised importer numbers within this time frame. As explained above in Section II,
Currently, during the period of retention (five years after the date of entry), the broker must maintain its records in such a manner that they can be readily examined by CBP when necessary. Records required to be maintained under this provision must be made available upon reasonable notice for inspection, copying, reproduction or other official use by representatives of the Department of Homeland Security. Additionally, customs brokers currently have the option to store records offsite. Under the rule, upon request by CBP to examine records, the designated recordkeeping contact must make all records available to CBP within thirty (30) calendar days, or any longer timeframe as specified by CBP, at the location specified by CBP. This change in the regulations is necessary to ensure brokers continue to give CBP the requested information and to specifically state for clarity that brokers need to keep records in the customs territory of the United States. As this is an existing requirement newly stated for the sake of clarity, this will result in no additional burden for customs brokers.
CBP received comments regarding the requirement to maintain records within the customs territory of the United States. As further discussed above in Section II,
The rule requires that a broker document and report to CBP when it separates from a client relationship as a result of the broker's determination that the client is intentionally attempting to use the broker's services to defraud or otherwise commit any criminal act against the U.S. Government. This is an entirely new provision, so CBP does not have data on how often clients may use a broker's services to defraud or otherwise commit criminal acts against the U.S. Government. However, based on stakeholder feedback during the development of the NPRM, CBP subject matter experts do not expect this to happen often. CBP's Broker Management Branch estimates this to occur approximately five times per year and each resulting report will take brokers approximately four hours to draft. CBP requested public comment on this assumption and did not receive any comments. CBP did receive some comments regarding this provision and the responsibility of the broker, which are discussed in greater detail in the comment responses above.
CBP expects that, in most cases, the necessary information will be submitted by customs brokers employing in-house or external attorneys to draft the report. CBP received one comment in response to the attorney wage rate used in the NPRM stating that while attorney compensations may be accurately reported by the Bureau of Labor Statistics, actual costs of employing an attorney are significantly higher than estimated by CBP. CBP agrees and has updated the cost estimates to reflect a higher wage. The loaded wage rate for an attorney is $94.15, which accounts for regional differences as well as differences in experience and specialty.
A customs broker is required to have a customs power of attorney prior to transacting any customs business on behalf of the importer of record.
According to CBP's Broker Management Branch, it takes approximately 1.75 hours, on average, for the broker to obtain a customs power of attorney from the freight forwarder, a time estimate CBP believes will also apply to securing a power of attorney from the importer of record or drawback claimant. CBP received two comments disputing this estimation in response to the NPRM, both noting that it may take substantially longer to acquire a power of attorney under the rule, though neither commenter provided an estimated time burden. However, this estimation is an average across all clients and over time. While it may initially take slightly longer to secure a power of attorney directly from certain clients, for others it will be faster than dealing with the freight forwarder. Additionally, as brokers regularly work directly with importers of record and drawback claimants, the process will likely move faster. Furthermore, CBP based this average on subject matter expertise and information from discussions between the Broker Management Branch and representatives of trade associations and individual brokers. CBP therefore believes the average time to procure a power of attorney will not change once the intermediary is removed and the broker must obtain the customs power of attorney directly from the importer of record or drawback claimant instead of allowing a freight forwarder or other third party to do so on their behalf.
A number of the changes contained in this rule are meant to increase professionalism and clarify what brokers should already be doing. CBP recognized this need given the volume of routinely fielded questions about these topics. The next several sections describe the current process, and what is changing as a result of this rule, for new requirements related to Customs Business, Records Confidentiality, Responsible Supervision and Control, and Advice to Client.
Currently, customs business must be conducted within the customs territory of the United States as it is defined in 19 CFR 101.1. Furthermore, each brokerage or company employing brokers must designate a licensed broker or knowledgeable employee to be available to CBP to respond to issues related to the transacting of customs business. CBP received several comments regarding this requirement. As discussed above in Section II,
Currently, records pertaining to the clients of the broker are to be considered confidential and the broker must not disclose their contents, or any information connected with the records to any other persons except the relevant surety, other than specifically described Government representatives with regard to a particular entry or due to a subpoena. This is not changing under the rule. However, this description is clarified to state that these records may not be disclosed to any persons other than the ones mentioned above and to the representatives of the Department of Homeland Security except by court order, subpoena (as mentioned above), or when authorized in writing by the client. This has been the practice but has been the subject of confusion. Finally, the revised language clarifies that the confidentiality provision does not apply to information that is in the public domain, which has been a point of confusion for some brokers. CBP received several comments on this provision, discussed in greater detail in the comment responses above, but is not revising the requirements for this final rule or the analysis of costs and benefits.
Brokers often have employees working for them who are not licensed brokers. These employees help with information collection and submission of entry documentation to CBP. Each broker is responsible for exercising responsible supervision and control over the transaction of the customs business done under his or her broker license. This requirement currently exists and is not changing as a result of this rule. However, this rule moves the list of factors CBP considers when determining whether a customs broker is exercising responsible supervision and control from the definition of “responsible supervision and control” in § 111.1 to § 111.28. This list is of a substantive nature and is more appropriately located in the section on responsible supervision and control as opposed to the definitions section. CBP has always maintained that the current factors are not exhaustive, and in the rule, CBP is simply clarifying existing requirements that brokers, for the most part, are already complying with in practice.
In this final rule, CBP has also made some clarifying changes. In § 111.28(a), CBP combined factors (12) and (13) into one new factor (12), which deals with the broker-CBP relationship, and combined factors (14) and (15) into one new factor (13), relating to the broker-officer/member relationship. In
CBP received many comments regarding the responsible supervision and control factors and their use in evaluating broker performance. These comments are discussed in greater detail above in Section II,
Additionally, CBP is clarifying some of the requirements on the reporting of employee information by brokers, for consistency. This rule removes the requirement for the broker to report each employee's last home address, email address, the name and address of each former employer, and, if the employee had been employed by the broker for less than three years, the dates of employment for the three-year period preceding current employment with the broker. This rule retains the requirement that brokers report other information, including employee names, social security numbers, dates and places of birth, dates of hire, and current home addresses. An updated list must be submitted to the processing Center and updated in ACE if any of the information required changes, including notation of new or terminated employees. This update must be submitted within thirty (30) calendar days of the change. However, brokers already have an up-to-date list of their employees' contact information. This new requirement amounts to a routine submission each month in ACE with data that the brokers already routinely keep. They are likely to do this at the same time as making their other filings or routine reports so submitting one more existing document is not an additional measurable burden on customs brokers.
Currently, if a broker knows that a client has not complied with the law or has made an error in, or omission from, any document, affidavit, or other record which the law requires the client to execute, the broker must advise the client promptly of that noncompliance, error, or omission. This rule also requires the broker to advise the client on the proper corrective actions and retain a record of the broker's communication with the client for potential review by CBP on a routine visit to the broker. Brokers will not have to report errors, omissions or noncompliance discovered by the broker each time one is discovered, and the client is counseled. However, if CBP identifies the error, omission or noncompliance and brings it to the broker's attention, the broker should provide the documentation of the communication with the client. These additions clarify the level of professionalism that is expected in the broker/importer relationship. Most brokers are already in compliance with this requirement, so this provision will not add a significant burden to customs brokers. CBP received a few comments on this provision, which are further discussed above in Section II,
In this final rule, CBP is also announcing the deployment of the eCBP portal, a new payment and submission system. The eCBP portal is part of an ongoing effort by CBP to eliminate manual processes, reduce cash and check collections at ports of entry, standardize processes, integrate data with cargo systems, reduce wait times at ports of entry, provide more online payment options, and provide better and more accessible data. As described above in
As further discussed above, CBP tested the eCBP portal for use in filing the triennial status report between December of 2017 and May 2018. The new portal was then deployed for the following filing period of the triennial report beginning in December of 2020 and will be used for the next filing in December 2023 into early 2024. The portal was also deployed to accept license exam application fees in August of 2019. As a part of regular announcements, CBP announced the new payment system through CSMS messages, a message on CBP's website, tweets, and in webinars for the broker community. Finally, CBP added the automatic suspension and revocation processing of licenses for unsubmitted triennial status reports as a portal functionality in February 2021, though a CBP employee still reviews all license records with unsubmitted reports prior to suspension or revocation.
CBP saw significant savings resulting from reduced processing and personnel hours, discussed further below, with the deployment of the eCBP portal. The portal also required some initial investment in programming and technical development. However, those costs are part of a long-term project within CBP called Revenue Modernization, which touches on several different areas of CBP's payment processing systems. The Revenue Modernization team is not able to easily identify an exact allocation of its development costs for the eCBP-specific initiatives at this time. The development costs are intertwined with back-end development shared with another Revenue Modification project's solution, as well as development that serves as a front-end platform for numerous other fee collection efforts. The eCBP portal will eventually encompass a variety of different fees, so full development costs are not limited to broker-related projects. The program plans to allocate the costs once it is closer to the solutions being complete. CBP estimates that, as of FY 2021, development costs have amounted to less than $3 million for the broker fees deployed in the eCBP portal to date.
The eCBP portal currently allows brokers and broker exam applicants to submit paperwork and fees for the broker exam and the triennial status report electronically. According to CBP data, between 80 and 90 percent of the brokers required to submit applications and fees did so via the portal following the introduction of both functionalities, resulting in significant time savings for applicants, brokers, and CBP personnel. To access the portal, users must first create a
In 2019, the first year that broker exam applicants were able to use the portal, 1,327 applicants successfully paid their fees for the fall exam via the eCBP portal, saving an average of 43 minutes relative to a paper form.
In 2021, brokers were able to use the portal to file their triennial status reports and related fees. Approximately 91 percent of brokers, or 13,772 filers, did so, with 1,406 brokers preferring to file a paper report. The electronic filers saved an average of 19 minutes relative to paper filers.
With information and payments submitted electronically in 2019, CBP subject matter experts estimate that CBP saved approximately 280 hours of exam fee processing time, in addition to about 430 hours of time processing withdrawals and mailing out results, for a total savings of 710 hours in 2019, implying a time savings of 32 minutes per applicant.
Applicants, brokers, and CBP will save time with the eCBP portal over the period of analysis from 2022-2026. CBP will offer the broker exam twice per year, meaning approximately 1,292 applicants will use the portal at each exam, for a total of 2,583 applicants per year.
Savings for CBP over the period of analysis amount to $716,066, incorporating savings from the processing of payments, paper forms, exam withdrawals, results, and suspensions. CBP will also require less data entry, resulting in fewer mistakes, reduced time fixing errors, and more time on tasks other than administration. The automation of payments also allows for greater efficiency and speed in payment processing, and reduced cash losses. CBP did incur some unquantified IT and development costs. As stated above, these costs are part of a larger modernization effort by CBP and cannot be separated out by program. Table 17 summarizes these savings.
In the course of the eCBP portal test, both CBP and brokers/applicants experienced significant time savings. CBP's time savings throughout the test resulted primarily from greater efficiency in electronic processing of payments, an increase in the number of on-time payments, reduction in time spent on administrative tasks in processing withdrawals and results, and the introduction of automatic suspension. CBP personnel saved 1,500 hours across the 2017/2018 reporting cycle—savings from which are reported in 2018 in Table 18. CBP saved 710 hours across a single exam in 2019, as well as 1,494 hours across two exams in 2020, as shown in Table 14 above. CBP also saved 1,836 hours across the 2020/2021 reporting cycle, reported in 2021 in Table 18, and 1,250.4 hours across two exams.
Brokers and applicants also saved time if they chose to participate. In the 2017/2018 reporting cycle, 11,254 participating brokers saved 19 minutes per submission. Those savings are reported in 2018 in Table 18 below. In 2019, 1,327 exam applicants saved 43 minutes each, while in 2020, 2,793 exam applicants saved the same. In 2021, 2,337 exam applicants saved 43 minutes each. In the 2020/2021 reporting cycle, 13,772 brokers saved 19 minutes each, the savings from which are reported in 2021 in Table 18.
Brokers did experience a time cost in creating their
The total monetized costs for customs brokers include a $100 fee that two percent of individual customs brokers who receive their first district permit concurrently with their broker's license will need to pay for their permit and the costs resulting from the new requirement that a broker document and report to CBP when it separates from a client relationship as a result of attempted fraud or criminal acts. The costs also include the 5 minute time costs broker license exam applicants will experience in creating their
Table 20 shows the present value and annualized costs of the rule over the period of analysis at a three and seven percent discount rate. Total costs range from $72,860 to $81,381, depending on the discount rate used. Annualized costs are $17,770.
The total annual monetized savings for customs brokers are the result of monetary savings from switching from a district permitting system to a national permitting system. Namely, there is a time savings and fee savings of $100 per permit application for individual customs brokers who do not concurrently receive their first district permit with their broker license. There is also a time savings to CBP due to the removal of the district permit waiver application reviews. Brokers, potential brokers applying to take the broker exam, and CBP also experience time savings resulting from use of the eCBP portal. As shown in Table 21, total undiscounted savings over the period of analysis are $1,277,116.
In addition to these quantified benefits, there are unquantified benefits resulting from this rule's updates. These benefits include increased professionalism of the broker industry, greater clarity for brokers in understanding the rules and regulations by which they must abide, greater data security, and better reporting of potential fraud to CBP. The eCBP portal also increases the efficiency of payment processing, reduces errors, and allows a shift of resources from paperwork and administration to other CBP priorities.
Table 22 shows the present value and annualized savings of the rule over the period of analysis at a three and seven percent discount rate. Total savings range from $1,046,477 to $1,169,689, depending on the discount rate used. Annualized savings total approximately $255,000.
Table 23 summarizes the monetized costs and benefits of this rule to individual and business entity customs brokers. As shown, the total monetized present value net benefits of this rule over a five-year period of analysis ranges from $973,616 to 1,088,308 and the annualized net benefit is approximately $237,500.
Under the rule, the customs broker license application will change from $200 for both individuals and business entities to $300 for individuals and $500 for business entities. Consequently, CBP's fee would increase by $100 for individuals and $300 for business entities. As discussed in section 2, CBP estimates that over the next five years, 2,072 individuals and 75 business entities will be issued a new customs broker license (See Table 3). Using these estimates and the fee increases, CBP estimates that the rule will result in increased transfer payments from brokers to the government of approximately $229,700 over the next five years (2,072 individual applications * $100 fee increase = $207,200; 75 business entity applications * $300 fee increase = $22,500; $207,200 + $22,500 = $229,700).
Although the fee changes will increase costs for individuals and business entities, CBP has determined that these increases are necessary in order to recover some of the costs to provide the services necessary to facilitate the customs broker license application process.
The Regulatory Flexibility Act (5 U.S.C. 601
In an effort to modernize the regulations governing customs brokers, CBP is finalizing regulatory changes that include: eliminating district permits so each customs broker only needs one national permit, which reduces the time submitting permit applications and the fees owed; mandating that each broker provide notification to CBP of any known breach of its records within 72 hours of discovery;
The rule would apply to all customs brokers, regardless of size. Accordingly, the rule would affect a substantial number of small entities, as a small business within the Freight Transportation Arrangement industry (NAICS code 448510), the industry in which brokers are employed, is defined as one whose annual receipts are less than $17.5 million.
Additionally, as discussed above, the customs broker license application fee increase for the 2,147 new customs brokers over the period of analysis would result in a distributional impact of $229,700, with 2,072 individual applicants paying an additional $100 and 75 corporate applicants paying an additional $300 over a 5-year period. Including distributional impacts, the rule costs individual brokers $100 or costs corporate brokers $300 per year, or less than one percent of annual revenue for brokers of any size. Please see Table 23 for a breakdown of brokerages by size. Because the distributional impact and saving are relatively small on a per broker basis, this rule will not have a significant economic impact on customs brokers. Accordingly, CBP certifies that this rule does not have a significant economic impact on a substantial number of small entities.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3507), an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collections of information contained in these regulations are provided for by OMB control number 1651-0034 (CBP Regulations Pertaining to Customs Brokers) and by OMB control number 1651-0076 (Recordkeeping Requirements).
The final rule formalizes the use of the eCBP portal as an option for applicants and brokers to submit the Application for Broker License Exam and payment and the Triennial Status Report and payment. The eCBP portal reduces the time burden to submit these forms and fees. CBP would submit to OMB for review the following adjustments to the previously approved Information Collection under OMB control number 1651-0034 to account for this rule's changes.
This document is being issued in accordance with 19 CFR 0.1(b)(1), which provides that the Secretary of the Treasury delegated to the Secretary of Homeland Security the authority to prescribe and approve regulations relating to customs revenue functions on behalf of the Secretary of the Treasury for when the subject matter is not listed as provided by Treasury Department Order No. 100-16. Accordingly, this final rule amending such regulations may be signed by the Secretary of Homeland Security (or his or her delegate). Additionally, while the general topic of this rulemaking covers customs revenue functions delegated to the Secretary of Homeland Security by the Secretary of the Treasury, this document also includes certain fees over which the Secretary of the Treasury retains authority, as provided for in 19 CFR 0.1(a)(1) and paragraph 1(a)(i) of Treasury Department Order 100-16. Accordingly, this final rule is also being signed by the Secretary of the Treasury (or his or her delegate).
Accounting, Claims, Customs duties and inspection, Harbors, Reporting and recordkeeping requirements, Taxes.
Administrative practice and procedure, Brokers, Customs duties and inspection, Penalties, Reporting and recordkeeping requirements.
For the reasons given above, parts 24 and 111 of title 19 of the Code of Federal Regulations (19 CFR parts 24 and 111) are amended as set forth below:
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 3717, 9701; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624; 1641.
Section 111.2 also issued under 19 U.S.C. 1484, 1498;
Section 111.96 also issued under 19 U.S.C. 58c, 31 U.S.C. 9701.
The additions and revisions read as follows:
The revision reads as follows:
(b)
(a)
(b)
(a)
(b)
The revisions read as follows:
(b) * * * CBP will give notice of the time and place for the examination, including whether alternatives to on-site testing will be available, which is at CBP's sole discretion.
(f)
(a)
(1) The accuracy of the statements made in the application and interview;
(2) The business integrity and financial responsibility of the applicant; and
(3) When the applicant is an individual (including a member of a partnership or an officer of an association or corporation), the character and reputation of the applicant, including any association with any individuals or groups that may present a risk to the security or to the revenue collection of the United States.
(b)
(c)
If the appropriate Executive Director, Office of Trade, finds that the applicant is qualified and has paid all applicable fees prescribed in § 111.96(a), the Executive Assistant Commissioner will issue a license. A license for an individual who is a member of a partnership, or an officer of an association or corporation will be issued in the name of the individual licensee and not in his or her capacity as a member or officer of the organization with which he or she is connected. The license will be forwarded to the processing Center, which will deliver it to the licensee.
(a)
(b)
(1) Any cause which would justify suspension or revocation of the license of a broker under the provisions of § 111.53;
(2) The failure to meet any requirement set forth in § 111.11;
(3) A failure to establish the business integrity and financial responsibility of the applicant;
(4) A failure to establish the good character and reputation of the applicant;
(5) Any willful misstatement or omission of pertinent facts in the application or interview for the license;
(6) Any conduct which would be deemed unfair or detrimental in commercial transactions by accepted standards;
(7) A reputation imputing to the applicant criminal, dishonest, or unethical conduct, or a record of that conduct; or
(8) Any other relevant information uncovered over the course of the background investigation.
(a)
(b)
(c)
The revisions read as follows:
(a)
(b)
(1) The applicant's broker license number and date of issuance if available;
(2) If the applicant is applying for a national permit on behalf of a partnership, association, or corporation: the name of the partnership, association, or corporation and the title held by the applicant within the partnership, association, or corporation;
(3) If the applicant is applying for a national permit on behalf of a partnership, association, or corporation: a copy of the documentation issued by a State, or local government that establishes the legal status and reserves the business name of the partnership, association, or corporation;
(4) The address, telephone number, and email address of the office designated by the applicant as the office of record as defined in § 111.1. The office will be noted in the national permit when issued;
(5) The name, telephone number, and email address of the point of contact described in § 111.3(b) to be available to CBP to respond to issues related to the transaction of customs business;
(6) If the applicant is applying for a national permit on behalf of a partnership, association, or corporation: the name, broker license number, office address, telephone number, and email address of each individual broker employed by the partnership, association, or corporation;
(7) A list of all employees together with the specific employee information prescribed in § 111.28 for each employee;
(8) A supervision plan describing how responsible supervision and control will be exercised over the customs business conducted under the national permit, including compliance with § 111.28;
(9) The location where records will be retained (
(10) The name, telephone number, and email address of the knowledgeable employee responsible for broker-wide records maintenance and financial recordkeeping requirements (
(11) A receipt or other evidence showing that the fees specified in § 111.96(b) and (c) have been paid in accordance with paragraph (b) of this section.
(d)
(e)
(2)
(f)
The addition and revision read as follows:
(b) Each broker must provide notification to the CBP Office of Information Technology Security Operations Center (CBP SOC) of any known breach of electronic or physical records relating to the broker's customs business. Notification must be electronically provided (
(d) Each broker must designate a knowledgeable employee as the party responsible for brokerage-wide recordkeeping requirements. Each broker must maintain accurate and current point of contact information in a CBP-authorized electronic data interchange (EDI) system. If a CBP-authorized EDI system is not available, then the information must be provided in writing to the processing Center.
(a)
The records referred to in this part and pertaining to the business of the clients serviced by the broker are to be considered confidential, and the broker must not disclose their contents or any information connected with the records to any persons other than those clients, their surety on a particular entry, and representatives of the Department of Homeland Security (DHS), or other duly accredited officers or agents of the United States, except on subpoena or court order by a court of competent jurisdiction, or when authorized in writing by the client. This confidentiality provision does not apply to information that properly is available from a source open to the public.
(a)
(b)
(c)
The addition and revisions read as follows:
(a)
(1) The training provided to broker employees;
(2) The issuance of instructions and guidelines to broker employees;
(3) The volume and type of business conducted by the broker;
(4) The reject rate for the various customs transactions relative to overall volume;
(5) The level of access broker employees have to current editions of CBP regulations, the Harmonized Tariff Schedule of the United States, and CBP issuances;
(6) The availability of a sufficient number of individually licensed brokers for necessary consultation with employees of the broker;
(7) The frequency of supervisory visits of an individually licensed broker to another office of the broker that does not have an individually licensed broker;
(8) The frequency of audits and reviews by an individually licensed broker of the customs transactions handled by employees of the broker;
(9) The extent to which the individually licensed broker who qualifies the permit is involved in the operation of the brokerage and communications between CBP and the brokerage;
(10) Any circumstances which indicate that an individually licensed broker has a real interest in the operations of a brokerage;
(11) The timeliness of processing entries and payment of duty, tax, or other debt or obligation owing to the Government for which the broker is
(12) Communications between CBP and the broker, and the broker's responsiveness and action to communications, direction, and notices from CBP;
(13) Communications between the broker and its officer(s) or member(s), and the broker's responsiveness and action to communications and direction from its officer(s) or member(s).
(b)
(2)
(3)
(c)
(e)
The revisions read as follows:
(a)
(b)
(1) The date on which a licensed member or officer ceases to be the qualifying member or officer for purposes of § 111.11(b) or (c)(2), and the name of the licensed member or officer who will succeed as the license qualifier;
(2) The date on which a licensed employee ceases to be the national permit qualifier for purposes of § 111.19(a), and the name of the licensed employee who will succeed as the national permit qualifier; and
(3) Any change in the Articles of Agreement, Charter, Articles of Association, or Articles of Incorporation relating to the transaction of customs business, or any other change in the legal nature of the organization (for example, conversion of a general partnership to a limited partnership, merger with another organization, divestiture of a part of the organization, or entry into bankruptcy protection).
(c) * * * A broker who changes his or her name, or who proposes to operate under a trade or fictitious name in one or more States and is authorized by State law to do so, must submit to the appropriate Executive Director, Office of Trade, at the Headquarters of U.S. Customs and Border Protection, evidence of his or her authority to use that name. * * *
(d)
(2)
(A) State the name under which, and the address at which, the broker's business is conducted if he or she is a sole proprietor, and an email address;
(B) State the name and address of his or her employer if he or she is employed by another broker, unless his or her employer is a partnership, association or corporation broker for which he or she is a qualifying member or officer for purposes of § 111.11(b) or (c)(2); and
(C) State whether or not he or she still meets the applicable requirements of § 111.11 and § 111.19 and has not engaged in any conduct that could constitute grounds for suspension or revocation under § 111.53.
(ii) An individual broker not actively engaged in transacting business as a broker must provide CBP with the broker's current mailing address and email address, and state whether or not he or she still meets the applicable requirements of §§ 111.11 and 111.19 and has not engaged in any conduct that could constitute grounds for suspension or revocation under § 111.53.
(3)
(ii) A partnership, association, or corporation broker must state whether or not the partnership, association, or corporation broker still meets the applicable requirements of §§ 111.11 and 111.19 and has not engaged in any conduct that could constitute grounds for suspension or revocation under § 111.53.
(4)
(e) * * * Upon permanent termination of brokerage business, written notification of the name, address, email address and telephone number of the party having legal custody of the brokerage business records must be provided to the processing Center. * * *
A broker must not file or procure or assist in the filing of any claim, or of any document, affidavit, or other papers, known by such broker to be false. In addition, a broker must not give, or solicit or procure the giving of, any information or testimony that the broker knew or should have known was false or misleading in any matter pending before the Department of Homeland Security or to any representative of the Department of Homeland Security. A broker also must document and report to CBP when the broker separates from or cancels representation of a client as a result of determining the client is intentionally attempting to use the broker to defraud the U.S. Government or commit any criminal act against the U.S. Government. The report to CBP must include the client name, date of separation or cancellation, and reason for the separation or cancellation.
(c) * * *
(3) The broker must execute a customs power of attorney directly with the importer of record or drawback claimant, and not via a freight forwarder or other third party, to transact customs business for that importer of record or drawback claimant. No part of the agreement of compensation between the broker and the forwarder, nor any action taken pursuant to the agreement, can forbid or prevent direct communication between the importer of record, drawback claimant, or other party in interest and the broker; and
The additions and revisions read as follows:
(a)
(b)
(c) * * * The broker must advise the client on the proper corrective actions required and retain a record of the broker's communication with the client in accordance with §§ 111.21 and 111.23.
The revisions read as follows:
(a)
(b)
(c)
The revision reads as follows:
(a)
The addition reads as follows:
(g) The broker has been convicted of committing or conspiring to commit an act of terrorism as described in section 2332b of title 18, United States Code; or
Every complaint or charge against a broker which may be the basis for disciplinary action may be forwarded for investigation to the appropriate investigative authority within the Department of Homeland Security. The investigative authority will submit a final report on the investigation of complaints to the processing Center and send a copy of the report to the appropriate Executive Director, Office of Trade.
The processing Center will review the report on the investigation of complaints, or if there is no report on the investigation of complaints, other documentary evidence, to determine if there is sufficient basis to recommend that charges be preferred against the broker. The processing Center will then submit the recommendation with supporting reasons to the appropriate Executive Director, Office of Trade, for final determination together with a proposed statement of charges when recommending that charges be preferred.
The appropriate Executive Director, Office of Trade, will make a determination on whether or not charges should be preferred, and will notify the processing Center of the decision.
The processing Center will prepare a summary of any oral presentations made by the broker or the broker's attorney and forward it to the appropriate Executive Director, Office of Trade, together with a copy of each paper filed by the broker. The processing Center will also give to the appropriate Executive Director, Office of Trade, a recommendation on action to be taken as a result of the preliminary proceedings. If the appropriate Executive Director, Office of Trade, determines that the broker has satisfactorily responded to the proposed charges and that further proceedings are not warranted, he or she will so inform the processing Center, who will notify the broker. If no response is filed by the broker or if the appropriate Executive Director, Office of Trade, determines that the broker has not satisfactorily responded to all of the proposed charges, he or she will advise the processing Center of that fact and instruct the processing Center to prepare, sign, and serve a notice of charges and the statement of charges. If one or more of the charges in the proposed statement of charges was satisfactorily answered by the broker in the preliminary proceedings, the appropriate Executive Director, Office of Trade, will instruct the processing Center to omit those charges from the statement of charges.
The revision reads as follows:
(d) The broker will be notified of the time and place of a hearing on the charges; and
The revisions read as follows:
(a) * * *
(2) By certified mail, return receipt requested, addressed to the broker's office of record (or other address as provided pursuant to § 111.30).
(c)
If the Executive Assistant Commissioner finds that the evidence produced at the hearing indicates that a proper disposition of the case cannot be made on the basis of the charges preferred, he or she may instruct the processing Center to serve appropriate charges as a basis for new proceedings to be conducted in accordance with the procedures set forth in this subpart.
If the Executive Assistant Commissioner finds that one or more of the charges in the statement of charges is not sufficiently proved, the suspension, revocation, or monetary penalty action may be based on any remaining charges if the facts alleged in the charges are established by the evidence. If the Executive Assistant Commissioner in the exercise of discretion and based solely on the record, issues an order suspending a broker's license or permit for a specified period of time or revoking a broker's license or permit or, except in a case described in § 111.53(b)(3), assessing a monetary penalty in lieu of suspension or revocation, the appropriate Executive Director, Office of Trade, will promptly provide written notification of the order to the broker and, unless an appeal from the order of the Executive Assistant Commissioner is filed by the broker (
The revision reads as follows:
(b)
If, pursuant to § 111.76 or for any other reason, the Executive Assistant Commissioner issues an order vacating or modifying an earlier order under § 111.74 suspending or revoking a broker's license or permit, or assessing a monetary penalty, the appropriate Executive Director, Office of Trade, will notify the broker in writing and will publish a notice of the new order in the
The Executive Assistant Commissioner may settle and compromise any disciplinary proceeding which has been instituted under this subpart according to the terms and conditions agreed to by the parties including, but not limited to, the assessment of a monetary penalty in lieu of any proposed suspension or revocation of a broker's license or permit.
(a)
(b)
(d)
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and request for comment.
The U.S. Department of Energy (“DOE”) proposes to establish definitions, a test procedure, and sampling and representation requirements for air cleaners. Currently, air cleaners are not subject to DOE test procedures or energy conservation standards. DOE proposes a test procedure for measuring the integrated energy factor for air cleaners. The proposed test method references the relevant industry standard, with certain proposed modifications. DOE is seeking comment from interested parties on the proposal.
DOE will accept comments, data, and information regarding this proposal no later than December 19, 2022. See section V, “Public Participation,” for details. DOE will hold a webinar on Wednesday, November 9, 2022, from 1:00 p.m. to 4:00 p.m. See section V, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section V of this document.
The docket web page can be found at
Dr. Stephanie Johnson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1943. Email
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2588. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in a public meeting (if one is held), contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
DOE proposes to incorporate by reference the following draft industry standards into 10 CFR part 430:
AHAM AC-7-2022 Draft, “Energy Test Method for Consumer Room Air Cleaners”.
AHAM AC-7-2022 Draft is in draft form and its text was provided to DOE for the purposes of review only during the drafting of this notice of proposed rulemaking (“NOPR”). DOE intends to update the reference to the final published version of AHAM AC-7-2022 Draft in the test procedure final rule, should it publish prior to the final rule, unless there are substantive changes between the draft and published versions, in which case DOE may adopt the substance of the AHAM AC-7-2022 Draft or provide additional opportunity for comment on the changes to the industry consensus test procedure.
A copy of AHAM AC-7-2022 Draft is included in the docket for this proposed rulemaking.
AHAM AC-7-2022 Draft additionally references ANSI/AHAM AC-1-2020, “Method for Measuring Performance of Portable Household Electric Room Air Cleaners” in several sections (“AHAM AC-1-2020”).
A copy of AHAM AC-1-2020 can be obtained from the Association of Home Appliance Manufacturers (AHAM) at 1111 19th Street NW, Suite 402, Washington, DC 20036; or
ASTM E741-11(2017), “Standard Test Method for Determining Air Change in a Single Zone Means of a Tracer Gas Dilution” Reapproved Sept. 1, 2017.
A copy of ASTM E741-11(2017) can be obtained from ASTM International (ASTM), 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, or
IEC 62301, “Household electrical appliances—Measurement of standby power;” Edition 2.0, 2011-01, (“IEC 62301 Ed. 2.0”).
A copy of IEC 62301 Ed. 2.0 can be obtained from the International Electrotechnical Commission (IEC), available from the American National Standards Institute (ANSI), 25 W 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or
See section IV.M of this document for a further discussion of these standards.
On July 15, 2022, DOE published a final determination (“July 2022 Final Determination”) in which it determined that air cleaners qualify as a “covered product” under the Energy Policy and Conservation Act, as amended (“EPCA”).
EPCA, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B
As stated, DOE has determined that air cleaners are covered products. 87 FR 42297.
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of those consumer products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the
In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption. (42 U.S.C. 6295(gg)(2)(A)) Standby mode and off mode energy consumption must be incorporated into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product unless the current test procedures already account for and incorporate standby and off mode energy consumption or such integration is technically infeasible. If an integrated test procedure is technically infeasible, DOE must prescribe a separate standby mode and off mode energy use test procedure for the covered product, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)(ii)) Any such amendment must consider the most current versions of the IEC Standard 62301
DOE is publishing this NOPR consistent with its authority and these obligations.
DOE has not previously conducted a test procedure rulemaking for air cleaners. As stated, DOE determined in the July 2022 Final Determination that: coverage of air cleaners is necessary or appropriate to carry out the purposes of EPCA; the average U.S. household energy use for air cleaners is likely to exceed 100 kWh per year; and thus, air cleaners qualify as a “covered product” under EPCA. 87 FR 42297.
On January 25, 2022, DOE published a request for information (“January 2022 RFI”), seeking comments on potential test procedure and energy conservation standards for air cleaners. 87 FR 3702. In the January 2022 RFI, DOE requested comments, data, and information regarding development and evaluation of a new air cleaners test procedure that would be reasonably designed to produce test results, which reflect energy use during a representative average use cycle for the product without being unduly burdensome to conduct.
DOE received comments in response to the January 2022 RFI from the interested parties listed in Table I.1.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
On August 23, 2022, the Joint Commenters, New York State Energy Research and Development Authority, and Pacific Gas and Electric Company (hereafter referred to as “Joint Stakeholders”), submitted a joint proposal recommending a test procedure and energy conservation standards for consumer room air cleaners. (Joint Stakeholders, No. 16 at p. 1)
In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), DOE notes that it is deviating from the provision in appendix A that DOE will finalize coverage for a product/equipment at least 180 days prior to publication of a proposed rule to establish a test procedure. 10 CFR part 430, subpart C, appendix A, section 5(c). DOE is opting to deviate from this provision because of
In this NOPR, DOE proposes to establish a new test procedure at 10 CFR part 430, subpart B, appendix FF (“appendix FF”) for air cleaners that would include methods to (1) measure the performance of the covered product and (2) use the measured results to calculate an integrated energy factor (“IEF”) to represent the energy efficiency of an air cleaner.
DOE's proposed test procedure for air cleaners includes measurements of smoke clean air delivery rate (“CADR”) and dust CADR, which are used to calculate PM
(1) From AHAM AC-7-2022 Draft, the following items:
(a) Definition of “conventional room air cleaners” in 10 CFR 430.2, which would be used to specify the scope of the air cleaners test procedure in the proposed new appendix FF;
(b) Definitions of terms that are relevant to the test procedure;
(c) Test setup requirements for electrical supply and test chamber, which additionally include a reference to AHAM AC-1-2020;
(d) Instrumentation requirements for power measuring instruments and temperature and relative humidity measuring devices;
(e) Active mode and standby mode power measurements; the standby mode power measurement method additionally includes a reference to IEC 62301 Ed. 2.0 for the test conduct; and
(f) Calculations for PM2.5 CADR, AEC, and IEF.
(2) From AHAM AC-1-2020, test methods for determining the pollen CADR, smoke CADR, and dust CADR, calculation of effective room size, and test chamber construction and equipment.
This NOPR also proposes requirements regarding the sampling plan and representations for air cleaners at 10 CFR 429.67. DOE also proposes rounding requirements for the measured and calculated values of the air cleaners test procedure.
If the proposed test procedure and associated provisions are final, manufacturers would not be required to test according to the DOE test procedure until such time as compliance is required with energy conservation standards for air cleaners, should DOE establish such standards. Were DOE to establish test procedures as proposed, manufacturers choosing to make voluntary representations would be required to test the subject air cleaner according to the established test procedure, and any such representations would have to fairly disclose the results of such testing.
While discussion of DOE's proposed actions are addressed in detail in section III of this NOPR, DOE also received comments regarding the rulemaking process and timeline. These comments are summarized underneath.
AHRI and MIAQ commented that unresolved issues regarding scope and applicability from the September 2021 NOPD, made it difficult for stakeholders to participate meaningfully in providing substantive technical comments necessary to determine whether a particular test procedure is feasible and the impact of energy conservation standards on these products. (AHRI, No. 15 at p. 2; MIAQ, No. 5 at p. 2) AHRI and MIAQ additionally commented that the shortened comment period of 30 days from 75 days for the January 2022 RFI inhibited AHRI and MIAQ from investigating test laboratory capacity or capabilities. (AHRI, No. 15 at pp. 2-3
In the September 2021 NOPD, DOE proposed a definition for the term “air cleaner”. 86 FR 51629, 51632. At the time of the January 2022 RFI, DOE had not made a final determination about whether to cover air cleaners as a covered product nor had it finalized a definition of the term. 87 FR 3702, 3707. As such, the focus of the test procedure portion of the January 2022 RFI was to seek feedback primarily on the AHAM AC-1-2020 test procedure, which is an industry-accepted standard for testing portable household electric room air cleaners, as well as on other industry, investigative, and international test methods, including those under development. 87 FR 3702, 3707-3708. Further, as it pertains to the timeline for this rulemaking and as discussed in section I.C of this document, the timeline of this rulemaking is accelerated compared to DOE's typical timeline in order to follow as closely as possible the schedule outlined in the negotiated agreement.
In the September 2021 NOPD, DOE proposed the following definition for air cleaners:
An air cleaner is a consumer product that:
(1) Is a self-contained, mechanically encased assembly;
(2) Is powered by single-phase electric current;
(3) Removes, destroys, or deactivates particulates and microorganisms from the air;
(4) Excludes products that destroy or deactivate particulates and microorganisms solely by means of ultraviolet light without a fan for air circulation; and
(5) Excludes central air conditioners, room air conditioners, portable air conditioners, dehumidifiers, and furnaces as defined in 10 CFR 430.2. 86 FR 51629, 51632.
After considering the comments received in response to the September 2021 NOPD and January 2022 RFI, in the July 2022 Final Determination, DOE defined an air cleaner at 10 CFR 430.2 as “a product for improving indoor air quality, other than a central air conditioner, room air conditioner, portable air conditioner, dehumidifier, or furnace, that is an electrically-powered, self-contained, mechanically
In the July 2022 Final Determination, DOE addressed comments it received in response to the September 2021 NOPD as well as some of the comments it received in response to the January 2022 RFI
In this NOPR, DOE is proposing to establish test procedures for a subset of products that meet the definition of “air cleaner” as established by the July 2022 Final Determination. Specifically, DOE is proposing to define the scope of the proposed test procedure as covering products defined as “conventional room air cleaners” in the AHAM AC-7-2022 Draft standard. The proposed scope of the test procedure aligns with the available industry standard and encompasses a majority of the air cleaner market. Further, this scope is consistent with the scope in the Joint Proposal. (Joint Stakeholders, No. 16 at p. 5) DOE may consider test procedures for other types of air cleaners in a future rulemaking.
Section 2.1.1 of AHAM AC-7-2022 Draft defines a “conventional room air cleaner” as a consumer room air cleaner that is a portable or wall mounted (fixed) unit that plugs in to an electrical outlet; operates with a fan for air circulation; and contains means to remove, destroy, and/or deactivate particulates.
Sections 2.1.3.1 and 2.1.3.2 of AHAM AC-7-2022 Draft further define “portable” and “fixed”, respectively, as follows:
DOE proposes to specify in section 1 of the proposed new appendix FF that the test procedure applies to “conventional room air cleaners” and to define that term in 10 CFR 430.2 through reference to Section 2.1.1 of AHAM AC-7-2022 Draft. DOE further proposes to add references to Sections 2.1.3.1 and 2.1.3.2 of AHAM AC-7-2022 Draft to the proposed definition of conventional room air cleaners to reference the definitions of portable and fixed conventional room air cleaners.
DOE requests comment on its proposal to define the scope of the proposed air cleaner test procedure as those air cleaners that meet the definition of a conventional room air cleaner as defined in Section 2.1.1 of AHAM AC-7-2022 Draft.
DOE requests comment on its proposal to reference Sections 2.1.1, 2.1.3.1, and 2.1.3.2 of AHAM AC-7-2022 Draft in 10 CFR 430.2 for the definitions of conventional room air cleaner, portable conventional room air cleaner, and fixed conventional room air cleaner, respectively.
In addition to defining the scope of the proposed air cleaner test procedure to conventional room air cleaners, DOE notes that Section 2 of AHAM AC-1-2020 indicates that the precision of the test method is as follows: ± 25 cubic feet per minute (“cfm”) for pollen CADR; ± 10 cfm for dust CADR; and ± 10 cfm for cigarette smoke CADR. Additionally, Section 2 of AHAM AC-1-2020 indicates that the theoretical maximum limits for CADR are determined by the maximum number of initial available particles, the acceptable minimum number of available particles, an average background natural decay rate (from statistical study), the size of the test chamber, and the available minimum experiment time. Given these levels of precision, Section 2 of AHAM AC-1-2020 specifies the test procedure being applicable only to air cleaners within rated CADR ranges of 10 to 600 cfm for dust and cigarette smoke and 25 to 450 cfm for pollen.
Further, in the negotiated agreement submitted by the Joint Stakeholders, they propose that negotiated standards are applicable to conventional room air cleaners with a minimum PM
As discussed, DOE's proposed scope pertains to conventional room air cleaners that are portable or wall mounted and plug into an electrical outlet. This is also the scope of the AHAM AC-7-2022 Draft and AHAM AC-1-2020 standards, which DOE is proposing to reference for the CADR and power measurement tests as discussed in later sections of this NOPR. Given that DOE is proposing to reference the AHAM industry standards for the DOE air cleaner test procedure, DOE requests comment on whether it should also specify the acceptable CADR range from AHAM AC-1-2020 as part of its test procedure scope. Specifically, DOE would consider specifying that the test procedure is applicable for conventional room air cleaners with smoke or dust CADR between 10 to 600 cfm.
DOE requests comment on whether it should reference Section 2 of AHAM AC-1-2020, which specifies that the standard is applicable for air cleaners only within rated CADR ranges of 10 to 600 cfm for dust and cigarette smoke. Additionally, DOE requests comment on whether this CADR range should be specified for PM
As discussed, AHAM published AHAM AC-1-2020 for measuring the performance of portable household electric room air cleaners.
AHAM AC-1-2020 is a voluntary industry-developed test procedure that provides test methods to measure the relative reduction of smoke, dust, and pollen suspended in the air in a specified test chamber when an air cleaner is in operation. The test method is conducted by introducing a known initial concentration of a given particulate in the chamber, without the air cleaner in operation, to measure its natural decay. Next, the particulate is reintroduced in the chamber with the air cleaner in operation to measure the particulate decay with the air cleaner operating. The difference in the logarithmic rate of decay with the air cleaner in operation and without the air cleaner in operation, multiplied by the volume of the chamber, provides the CADR value of the test unit. AHAM AC-1-2020 additionally specifies methods to measure an air cleaner's active mode power consumption when conducting the pollen, smoke, or dust performance test in the test chamber, as well as methods to measure standby mode power consumption.
AHAM AC-1-2020 is currently referenced by the U.S. Environmental Protection Agency (“EPA”) in the ENERGY STAR Product Specification for Room Air Cleaners, Version 2.0, Rev. May 2022 (“ENERGY STAR V. 2.0 Specification”).
In the January 2022 RFI, DOE requested comment on whether AHAM AC-1-2020 provides an appropriate method to use as the basis for a Federal test method and for defining energy conservation standards for air cleaners. 87 FR 3702, 3708. DOE also sought feedback on industry standards that could be referenced for the standby power measurement procedure. Specifically, DOE requested feedback on the suitability of the standby power measurement test procedure specified in AHAM AC-1-2020, IEC 62301 Ed. 2.0, or any other test method for measuring standby mode and off mode energy use of consumer air cleaners, in light of EPCA's requirement in 42 U.S.C. 6295(gg)(2)(A)) for DOE to consider the most current version of IEC Standard 62301.
The Joint Commenters stated that AHAM and its partners
Since publication of the January 2022 RFI, DOE is aware that AHAM's air cleaner task force is working to establish a new test method, AHAM AC-7-2022 Draft, that would specify the test methods for measuring air cleaner efficiency. The power measurement test methods specified in AHAM AC-7-2022 Draft are being developed using the existing power measurement test methods specified in AHAM AC-1-2020, updated to reflect current air cleaner technologies and functionalities. Additionally, AHAM AC-7-2022 Draft specifies the methods to determine PM
AHAM AC-7-2022 Draft additionally references AHAM AC-1-2020 in several sections to specify requirements for the test chamber equipment and setup, as well as to conduct the in-chamber active mode power consumption test. All but one section refers to “ANSI/AHAM AC-1,” “AHAM AC-1,” or “ANSI/AHAM AC-1-2020.” DOE understands each of these references to be denoting the AHAM AC-1-2020 version of the standard, since it is included as a normative reference in AHAM AC-7-2022 Draft. In contrast, Section 5.7.1 of AHAM AC-7-2022 Draft references ANSI/AHAM AC-1-2022 Draft in stating that potassium chloride (“KCl”) is allowed as an alternate to cigarette smoke in ANSI/AHAM AC-1-2022 Draft. The text of AHAM AC-1-2022 Draft standard was not available publicly for DOE to review at the time of publication of this NOPR. However, from its participation on the AHAM task force, DOE understands AHAM AC-1-2022 Draft to be materially the same as AHAM AC-1-2020, with updates to harmonize with other AHAM air cleaners standards (
In this NOPR, DOE proposes to incorporate by reference AHAM AC-7-2022 Draft into 10 CFR 430.3 and to reference the relevant sections of this industry standard in the DOE test procedure at the proposed new appendix FF. DOE is proposing modifications to certain aspects of AHAM AC-7-2022 Draft, as discussed in the relevant sections of this document that follow.
Specifically, DOE proposes to reference AHAM AC-7-2022 Draft to specify the test methods for determining PM
DOE additionally proposes to incorporate by reference AHAM AC-1-
DOE additionally proposes to incorporate by reference IEC 62301 Ed. 2.0, which is referenced in AHAM AC-7-2022 Draft, for the instrumentation requirements and standby mode power measurement.
DOE additionally proposes to incorporate by reference ASTM E741-11(2017), which is the current version of the standard referenced in Section 3.3 of AHAM AC-7-2022 Draft with regard to determining the test chamber air exchange rate.
As discussed, DOE intends to update the reference to the final published version of AHAM AC-7-2022 in the test procedure final rule, should it publish prior to the final rule, unless there are substantive changes between the draft and published versions, in which case DOE may adopt the substance of the AHAM AC-7-2022 Draft or provide additional opportunity for comment on the changes to the industry consensus test procedure.
Given that AHAM is considering publishing an updated AHAM AC-1-2022, should AHAM AC-7-2022 Draft be updated to reference AHAM AC-1-2022, DOE will consider adopting the published version of AHAM AC-7-2022, including the reference to AHAM AC-1-2022 as long as it is also published and is substantively the same as AHAM AC-1-2020. If there are substantive changes between the final version of AHAM AC-1-2022 and AHAM AC-1-2020, DOE may consider providing additional opportunity for comment on the changes to the industry consensus test procedure or continue to reference AHAM AC-1-2020. Additionally, DOE is considering whether it should include reference to the use of KCl as an alternate to cigarette smoke, as currently specified in AHAM AC-7-2022 Draft.
DOE requests comment on its proposal to adopt the substantive provisions of AHAM AC-7-2022 Draft with certain modifications.
DOE requests comment on its proposal to incorporate by reference AHAM AC-1-2020, which is referenced in AHAM AC-7-2022 Draft, as well as to specify provisions related to the measurement of pollen CADR, smoke CADR, and dust CADR.
DOE also requests comment on whether it should consider specifying that KCl is an allowable alternate to cigarette smoke in the measurement of smoke CADR, even if AHAM AC-1-2022 Draft is not published by the time DOE publishes its final rule. DOE requests data and information on the implications of using cigarette smoke and KCl interchangeably when performing air cleaner performance tests. DOE requests data and information on how a CADR value obtained using KCl compares to the CADR value obtained using cigarette smoke.
DOE requests comment on its proposal to reference IEC 62301 Ed. 2.0, which is referenced in AHAM AC-7-2022 Draft for the instrumentation and testing provisions for measuring standby mode power consumption.
DOE requests comment on its proposal to reference ASTM E741-11(2017), which is referenced in AHAM AC-7-2022 Draft for determining the test chamber air exchange rate.
In the January 2022 RFI, DOE also requested comment on whether it should consider any methodology for measuring the removal efficacy of microorganisms (
In response to the January 2022 RFI, Lennox commented that the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”) standard ASHRAE 52.2-2017, “Method of Testing General Ventilation Air-Cleaning Devices for Removal Efficiency by Particle Size,” methodology is acceptable for air cleaners that remove particles. (Lennox, No. 7 at pp. 2-3) DOE notes that ASHRAE 52.2-2017 provides a test method for measuring the performance of general ventilation air cleaning devices; specifically, it provides a metric to determine the performance of air filters that are part of in-duct or whole-home air cleaners. Non-powered products such as filters are not included within the proposed scope of the proposed test procedure.
MIAQ and AHRI commented that ASHRAE and AHRI standards and State regulations already require manufacturers of air cleaners to optimize their product air filter designs and that DOE's new standard would create potential conflicts, such as competing goals. (MIAQ, No. 5 at pp. 5-7; AHRI, No. 15 at pp. 7-8) DOE notes that while the ASHRAE and AHRI standards and State regulations may specify requirements for air filter designs, DOE's proposed test procedure is intended to evaluate the energy efficiency of an air cleaner;
MIAQ commented that in addition to the industry test standards that DOE referenced in the January 2022 RFI, DOE could consider evaluating other international air cleaners test methods such as the CNS 16098 standard specified in Taiwan's regulations,
DOE's preliminary assessment of Taiwan and Thailand's regulations indicate that these standards specify the evaluation of PM
Similarly, NF EN 16846-1:2017 is a test method to evaluate photocatalytic devices used for the elimination of gasses and DOE will evaluate this standard. ASHRAE 52.2, ASHRAE 52.2 with optional appendix J, ASHRAE 145.2, and ISO 10121 are standards for air filters used as part of in-duct devices, which are not included within the proposed scope of the proposed test procedure. Similarly, ISO 16890 is a standard for the air filters of general ventilation air cleaners, which are not included within the proposed scope of the proposed test procedure. AHRI Standard 850 and AHRI Standard 680/681—2017 are standards for air filters and associated equipment, which DOE is not proposing to regulate in this proposed test procedure. Finally, ASHRAE 185.1 is a standard for testing ultraviolet (“UV”) lights in air ducts; DOE's definition of air cleaners excludes products that operate solely by means of UV light without a fan for air circulation.
The CA IOUs stated that DOE should consider provisions specified in ANSI and ASHRAE standards for air cleaners that generate ozone or UV light. (CA IOUs, No. 10 at p. 11) DOE's objective is to establish test procedures for air cleaners that would evaluate the energy efficiency of an air cleaner. It is DOE's understanding that safety standards and requirements specified in industry standards ensure that both ozone and UV light generated as part of air cleaner operation remain within specified threshold limits. Therefore, DOE is not proposing to adopt these provisions in the air cleaners test procedure.
The CA IOUs additionally commented that in the absence of an acceptable standardized energy performance rating for biological agents, it would be reasonable to focus on the accepted particulate-based energy test, but recommended that DOE validate if a correlation exists between the microorganism and particulate tests. (CA IOUs, No. 10 at p. 6)
Synexis commented that DOE should consider test methods used to measure the removal of microorganisms such as AHAM AC-5-2022 Draft. Synexis stated that the Korean Test Labs test method only tests for bacterial reduction. Synexis stated that utilizing the Research Triangle Institute (“RTI”) test method in combination with some additional test methods (National Research Council Canada (“NRCC”) or others) would provide better evidence of device effectiveness. For example, the RTI and NRCC test methods capture many of the effectiveness criteria, as the RTI method measures airborne virus, bacteria and mold reduction while the NRCC method measures VOC and ozone reduction and would demonstrate that the devices are not producing harmful levels of by-products. (Synexis, No. 9 at pp. 3-4) Molekule commented that many of the industry standards that evaluate the performance of air cleaners against microorganisms and chemicals, such as AHAM AC-4, AHAM AC-5-2022, and the NRCC_54013 protocol, only gauge the initial reduction of pollutants and do not provide any insight into sustained performance over time. (Molekule, No. 12 at p. 4)
Lennox commented that microorganisms and VOCs present complex issues that DOE must consider before proceeding with a test procedure or standard. Lennox further stated that AHAM is working to include microorganisms as a new contaminant in its air cleaner standard and DOE should wait until that standard is published. (Lennox, No. 7 at p. 3) It is DOE's understanding that the AHAM standard that Lennox is referencing is AHAM AC-5-2022, which published after the comment period for the January 2022 RFI closed.
In proposing to establish an initial test procedure for measuring energy efficiency of air cleaners, DOE is focusing on the functionality most broadly implemented in air cleaners on the market in the United States;
An example of a test method for air cleaners that reduce concentrations of airborne microorganisms is AHAM AC-5-2022, which AHAM issued in March 2022. Under this test method, air cleaners are tested in a manner similar to AHAM AC-1-2020, except microorganisms are aerosolized and introduced into the chamber rather than particulates. AHAM AC-5-2022 specifies different types of bacteria, bacteriophages, and mold spores that could be used for testing. Although DOE is not proposing provisions in this proposed test procedure to measure the efficacy of an air cleaner's removal of microorganisms, DOE welcomes comment on the impact the type of microorganism selected for testing has on the CADR for microbes (“m-CADR”) value (
DOE requests comment on whether the m-CADR value specified in AHAM AC-5-2022 would change, and if so, how, if a different type of microorganism was used for testing from the same general microorganism category (
DOE requests comment on whether measurements taken every 2 minutes for a duration of 10 minutes, as specified in Section 7.3 of AHAM AC-5-2022, is sufficient to determine m-CADR. DOE also requests comment on the duration for which a sample must be collected for each measurement point.
Additionally, if stakeholders indicate that operating the test unit for 10 minutes is sufficient, DOE requests comment on whether the natural decay
As discussed, the July 2022 Final Determination established a definition for air cleaners. Additionally, as discussed in section III.A of this document, DOE is proposing to reference Section 2.1.1 of AHAM AC-7-2022 Draft in 10 CFR part 430.2 to specify the definition for “conventional room air cleaner” and additionally reference within this definition Sections 2.1.3.1 and 2.1.3.2 of AHAM AC-7-2022 Draft to define “portable air cleaner” and “fixed air cleaner,” respectively. These definitions are relevant to establish the scope of the proposed new appendix FF.
In addition to these definitions, DOE proposes to specify certain additional definitions in the proposed new appendix FF that would be required to test air cleaners according to the proposed test procedure.
DOE proposes to reference Sections 2.2 and 2.3, Sections 2.4.1 through 2.4.2.4, and Sections 2.6 through 2.8 of AHAM AC-7-2022 Draft to specify definitions for the following terms in section 2 of the proposed new appendix FF:
• Function—means a predetermined operation undertaken by the air cleaner. Functions may be controlled by an interaction of the user, of other technical systems, of the system itself, from measurable inputs from the environment and/or time. In AHAM AC-7-2022 Draft, functions are grouped into four main types:
○ Primary functions
○ Secondary functions
○ User oriented secondary functions
○ Network related secondary functions
• Primary function—means an air cleaning function that reduces the concentration of one or more types of indoor air pollutants.
• Secondary function—means a function that enables, supplements, or enhances a primary function. For air cleaners, secondary functions are other functions which are not directly related to air cleaning. Examples may include a vacuum, heating, humidification, or additional ambient room lights (
• User oriented and network function (
• Mode—means a state that has no function, one function or a combination of functions present.
• Active mode—means a product mode where the energy using product is connected to a mains power source and at least one primary function is activated.
• Low power mode—as per IEC 62301 Ed. 2.0 means a product mode that falls into one of the following broad mode categories:
○ Off Mode(s)
○ Standby Mode(s)
○ Network Mode(s)
○ Inactive Mode
• Standby mode—means a mode offering one or more of the following user-oriented or protective functions which may persist for an indefinite time:
(a) To facilitate the activation of other modes (including activation or deactivation of active mode) by remote switch (including remote control), internal sensor, or timer.
(b) Continuous functions, including information or status displays (including clocks) or sensor-based functions.
• Inactive mode—means a standby mode that facilitates the activation of active mode by remote switch (including remote control) or internal sensor or which provides continuous status display.
• Off mode—means a mode in which a consumer room air cleaner is not providing any active or standby mode function and where the mode may persist for an indefinite time, including an indicator that only shows the user that the product is in the off position.
• Network mode—means any product modes where at least one network function is activated (such as reactivation via network command or network integrity communication) but where the primary function is not active.
• Clean Air Delivery Rate (CADR)—is the measure of the delivery of contaminant free air, within a defined particle size range, by an air cleaner, expressed in cubic feet per minute (cfm). CADR is the rate of contaminant reduction in the test chamber when the air cleaner is turned on, minus the rate of natural decay when the air cleaner is not running, multiplied by the volume of the test chamber as measured in cubic feet. Note: CADR values are always the measurement of an air cleaner performance as a complete system and have no linear relationship to the air movement per se or to the characteristics of any particle removal methodology.
• Integrated energy factor (IEF)—is the energy the air cleaner uses when it is in standby mode, as well as, its active mode energy. This is fully defined as the measured PM
• PM
• PM
The diversity of particle natures and the sizes of the dust and smoke pollutants gives a well-balanced representation of the ultra-fine and fine particulate matters that define PM
• PM
AHAM AC-7-2022 Draft also includes definitions for other terms that DOE is not proposing to incorporate into the proposed new appendix FF. Generally, these other terms are inconsistent with or not relevant to the proposed scope of the DOE test procedure.
DOE requests comment on its proposal to include definitions for the aforementioned terms, via reference to AHAM AC-7-2022 Draft, in the proposed new appendix FF. Should the AHAM task force consider any changes to any of these definitions or include definitions for additional terms that would be relevant to DOE's proposed test procedure, DOE requests comment on such changes and the justification for DOE to consider including them in its test procedure for air cleaners.
Section 3 of AHAM AC-7-2022 Draft specifies test conditions for the measurement of active mode and standby mode power consumption and includes references to certain sections of AHAM AC-1-2020 as appropriate. Specifically, Sections 3.1 through 3.6 of AHAM AC-7-2022 Draft specify requirements for active mode and standby mode electrical supply, test chamber ambient temperature, test chamber air exchange rate, test chamber particulate matter concentrations, chamber equipment, and test unit preparation (including conditioning of the air cleaner prior to testing, placement of the air cleaner for testing, and network connection setup requirements), respectively.
Through participation in the task force to develop AHAM AC-7-2022 and conducting preliminary testing, DOE has initially determined that the AHAM AC-7-2022 Draft test conditions produce test results that measure the efficiency of air cleaners during a representative average use cycle and are not unduly burdensome. Therefore, DOE proposes to reference the test condition requirements specified in Sections 3.1 through 3.6 of AHAM AC-7-2022 Draft in the proposed new appendix FF. The following sections summarize each of the requirements specified in AHAM AC-7-2022 Draft along with DOE's proposals.
Section 3.1 of AHAM AC-7-2022 Draft specifies the electrical supply requirements for active mode and standby mode testing. These requirements specify that active mode power supply test voltage and frequency must be set to the nameplate voltage ±1 percent. If a range of voltage is provided on the nameplate, then the voltage for the country for which the measurement is being determined shall be used per Table 1 of AHAM AC-7-2022 Draft (±1 percent). Table 1 specifies 120 volts and 60 hertz for units in North America. For standby mode testing, the power supply test voltage and frequency are to be set as noted in Table 1 of AHAM AC-7-2022 Draft (±1 percent), which specifies 115 volts and 60 hertz for units in North America. DOE notes that these power supply requirements are generally consistent with DOE test procedures for other consumer products for which standby mode and active mode are tested. Accordingly, DOE proposes to reference Section 3.1 of AHAM AC-7-2022 Draft for the electrical supply requirements.
DOE requests comment on its proposal to reference Section 3.1 of AHAM AC-7-2022 Draft for the electrical supply requirements for active mode and standby mode power measurement.
Section 3.2 of AHAM AC-7-2022 Draft specifies the test chamber ambient temperature requirements for active mode and standby mode tests. The active mode ambient temperature requirement is 70 ± 5 degrees Fahrenheit (“°F”) (21 ± 3 degrees Celsius (“°C”)) with a relative humidity of 40 ± 5 percent. The standby mode ambient temperature requirement is 70 ± 9 °F (21 ± 5 °C), with no relative humidity requirement specified. DOE notes that the active mode test requirements are similar to the ambient conditions specified for certain other consumer products that affect room air besides heating or cooling (
DOE recognizes that standby mode testing is likely to be much less sensitive to ambient room temperature or humidity compared to active mode testing, such that the wider tolerance on ambient temperature and the lack of a humidity requirement for standby mode testing are appropriate. DOE understands that test laboratories already have the expertise and equipment necessary to maintain these specified ambient temperature and relative humidity test conditions, within the specified tolerances, when testing air cleaners within the test chamber as well as the expertise and equipment necessary for maintaining temperature within the specified tolerance for standby mode. Accordingly, DOE proposes to reference these ambient temperature and relative humidity requirements from AHAM AC-7-2022 Draft.
DOE requests comment on its proposal to reference Section 3.2 of AHAM AC-7-2022 Draft for the ambient temperature and humidity requirements for active mode and standby mode power measurement.
Section 3.3 of AHAM AC-7-2022 Draft requires that, per AHAM AC-1-2020, the test chamber air exchange rate must be less than 0.03 air changes per hour as determined by ASTM E741 or an equivalent method. Section 4.3 of AHAM AC-1-2020 provides these specifications. DOE does not have information on typical air changes within a representative room, but this condition is necessary to ensure consistent test chamber conditions by minimizing the air exchange rate, and DOE has tentatively determined that the industry-accepted specification for the air exchange rate, as reviewed by the AHAM task force, would be appropriate for air cleaner testing. Accordingly, DOE proposes to additionally reference Section 4.3 of AHAM AC-1-2020 within the proposed provisions of Section 3 of the proposed new appendix FF. As discussed, DOE is also proposing to incorporate by reference ASTM E741-11(2017), the most recent version of that industry standard.
DOE requests comment on its proposal to reference Section 3.3 of AHAM AC-7-2022 Draft for the test chamber air exchange rate requirements, including its reference to ASTM E741-11(2017).
Section 3.4 of AHAM AC-7-2022 Draft specifies the acceptable range of particle concentrations for the initial test condition for the smoke and dust tests, via reference to Section 4.4 of AHAM AC-1-2020. DOE recognizes that initial particle concentration is a necessary requirement for repeatability and reproducibility by ensuring consistent test chamber conditions prior to measuring decay rate, and DOE has tentatively determined that the industry-accepted specification for the initial particle concentrations, as
DOE requests comment on its proposal to reference Section 3.4 of AHAM AC-7-2022 Draft for the initial particulate concentrations in the test chamber.
Section 3.5 of AHAM AC-7-2022 Draft references Annex A of AHAM AC-1-2020 to specify the test chamber construction and equipment positioning during testing. This includes requirements for chamber size, framework, constructions and material for the walls and flooring, as well as additional equipment that must be used in the chamber for conducting tests. DOE believes these requirements are relevant to ensure that testing is conducted in a representative chamber and that it is repeatable and reproducible.
In response to the January 2022 RFI, Synexis commented that the CADR test chamber is not representative of actual room sizes, that testing should be conducted in a larger chamber, and that the setup of an air cleaner (
EPCA requires that any test procedures DOE prescribes or amends be reasonably designed to produce test results that measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, as determined by the Secretary, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) DOE recognizes that the test chamber size specified in AHAM AC-1-2020, 10.5 feet (“ft”) × 12 ft × 8 ft, may not be representative of larger rooms, but DOE does not have consumer data on the room sizes in which air cleaners are most commonly used that would indicate that a different test chamber size would be more representative of average use. Additionally, utilizing a chamber of the same size for testing all conventional room air cleaners and that is required for testing in accordance with the ENERGY STAR V. 2.0 Specification would produce repeatable and reproducible test results, while also ensuring that the test setup and chamber size requirements are not unduly burdensome. Those laboratories that are currently testing air cleaners for the purposes of ENERGY STAR qualification are equipped with the test chamber specified in AHAM AC-1-2020, and specifying a larger test chamber size may reduce the capability of the industry to test at third-party laboratories and would also impose burden on test laboratories to upscale their test chambers. Further, AHAM AC-1-2020 specifies a maximum theoretical CADR that can be achieved when testing according to this standard, which is determined by the maximum number of initial available particles in the chamber, the acceptable minimum number of available particles in the chamber, an average background natural decay rate (from statistical study), and the size of the test chamber, and the available minimum experiment time.
DOE proposes to reference Section 3.5 of AHAM AC-7-2022 Draft, which references Annex A of AHAM AC-1-2020 for the details of the test chamber construction and equipment.
DOE requests comment on its proposal to reference Section 3.5 of AHAM AC-7-2022 Draft, which references Annex A of AHAM AC-1-2020 to specify the test chamber construction and equipment requirements.
Section 3.6 of AHAM AC-7-2022 Draft specifies three requirements regarding test unit preparation: conditioning of the air cleaner prior to measurement in Section 3.6.1; test unit placement for testing in Section 3.6.2; and network connectivity requirements in Section 3.6.3.
For the conditioning requirements, Section 3.6.1 of AHAM AC-7-2022 Draft specifies that air cleaners must be operated for 48 hours in maximum performance mode to break-in the motor prior to conducting any tests. It further specifies that this break-in must be conducted with replacement filters and that after the break-in period is completed, all original and as-received filters must be reinstalled, and non-replaceable components should be cleaned according to manufacturers instructions prior to performing the active mode test. Additionally, Section 3.6.1 of AHAM AC-7-2022 Draft specifies that installation of a UV device that is energized during air cleaning function and lamp assembly within the air cleaner shall be according to manufacturer's instructions and the burn-in time for the UV lamp shall also be 48 hours, run concurrently with the break-in period of the motor.
DOE requests comment on its proposal to reference Section 3.6.1 of AHAM AC-7-2022 Draft for the air cleaner conditioning requirements.
DOE requests comment on whether the 48 hour burn-in time for air cleaners with UV lights is sufficient or if the burn-in time duration should be increased.
Section 3.6.2 of AHAM AC-7-2022 Draft specifies that the air cleaner must be placed in the test chamber in accordance with Section 4.6 of AHAM AC-1-2020, which states that the air cleaner must be installed per manufacturer's instructions in the center of the test chamber, facing the test window, positioned with its air discharge as close as possible to the test chamber center. Section 4.6 of AHAM AC-1-2020 further requires that if the manufacturer's instructions “do not specify”
While DOE is proposing to reference Section 3.6.2 of AHAM AC-7-2022 Draft, DOE is considering if it should
DOE requests comment on its proposal to reference Section 3.6.2 of AHAM AC-7-2022 Draft, which references Section 4.6 of AHAM AC-1-2020 for the test unit placement instructions.
DOE also requests comment on whether it should consider including the requirement from IEC 63086-1 that specifies that if the placement of the air cleaner is not specified by the manufacturer and the air cleaner's height is less than 28 inches, then the unit must be tested on the table. Specifically, DOE requests comment on whether the language in AHAM AC-7-2022 Draft which states that, “if the air cleaner is not a floor model” is clear to follow, without any ambiguity, or whether a quantitative metric such as unit height would be better to ensure consistent test setup.
DOE also requests comment on whether it should include any placement instructions for air cleaners shipped with casters.
Section 3.6.3 of AHAM AC-7-2022 Draft specifies requirements for setting up air cleaners with network functionality, including requirements for the network connection and for establishing the connection between the air cleaner and the network. This section specifies that air cleaners must be tested on a Wi-Fi network and that if the unit has additional network capabilities (
DOE is aware of at least one air cleaner on the market
DOE requests comment on its proposal to reference Section 3.6.3 of AHAM AC-7-2022 Draft regarding network connection requirements during active mode and standby mode tests. DOE also requests comment on the impact on repeatability and reproducibility when testing air cleaners with network functionality while connected to a network.
DOE requests comment on whether the software update requirements are adequately specified or whether DOE should explicitly state that software updates must always be executed prior to running the tests.
DOE requests comment on its proposal to reference Sections 3.1 to 3.6 of AHAM AC-7-2022 Draft for the test conditions and setup. Should AHAM AC-7-2022 Draft change any of these requirements between publication of this NOPR and publication of the final version of AHAM AC-7-2022, DOE requests comment on these changes, the reasons for these changes, and the impact of these changes on the overall air cleaners test procedure.
Section 4 of AHAM AC-7-2022 Draft specifies requirements for instrumentation used for measuring voltage and power by referencing IEC 62301 Ed. 2.0 and specifies the accuracy required for power measuring equipment.
Sections 4.1.1 through 4.1.3 of AHAM AC-7-2022 Draft specify requirements for power measurement uncertainty, frequency response, and long-term averaging, by referencing requirements in Sections 4.4.1 through 4.4.3 of IEC 62301 Ed. 2.0. Along with these requirements, Section 4 of AHAM AC-7-2022 Draft specifies the accuracy of instruments used for measuring voltage and power to be accurate to within ±0.5 percent of the quantity measured. Section 4 of AHAM AC-7-2022 Draft also specifies requirements for the accuracy of the temperature measuring device (error no greater than ± 1 °F (± 0.6 °C) over the range being measured) and the relative humidity measuring device (resolution of at least 1 percent relative humidity, and an accuracy of at least ± 6 percent relative humidity over the temperature range of (24 ± 3) °C [(75 ± 5) °F]).
DOE understands these instrumentation specifications to be appropriate for producing repeatable, reproducible, and representative test results for air cleaners, and that test laboratories currently have instrumentation that meets these proposed specifications. Therefore, DOE proposes to reference these instrumentation requirements specified in Section 4 of AHAM AC-7-2022 Draft, including the applicable provisions from Sections 4.4.1, 4.4.2, and 4.4.3, of IEC 62301 Ed. 2.0 in the proposed new appendix FF.
DOE requests comment on its proposal to incorporate by reference Section 4 of AHAM AC-7-2022 Draft regarding instrumentation requirements, including the applicable provisions from relevant sections of IEC 62301 Ed. 2.0. Should AHAM AC-7-2022 Draft change any of these requirements between publication of this NOPR and publication of the final version of AHAM AC-7-2022, DOE requests comment on these changes, the reasons for these changes, and the impact of these changes on the overall air cleaner test procedure.
Section 3.14 of AHAM AC-1-2020 defines CADR as the metric which measures an air cleaner's efficacy in removing particulate matter from the air. CADR represents the logarithmic rate of particulate reduction in the test chamber when the air cleaner is turned on (expressed as a number per minute), minus the logarithmic rate of “natural decay”
Sections 5, 6, and 7 of AHAM AC-1-2020 specify procedures for measuring air cleaner efficacy using three different types of particulates representing three ranges of particulate matter size: cigarette smoke (0.10 micrometer (“μm”) to 1.0 μm diameter), dust (0.5 μm to 3.0 μm diameter), and pollen (5 μm to 11 μm diameter), respectively.
In the January 2022 RFI, DOE requested comment on the use of CADR, as opposed to another metric such as rate of decay, to characterize air cleaner performance. In particular, DOE requested comment on whether consumers could find the unit of measurement of cfm for CADR confusing and misunderstand it as referring to the rate of air movement through the device. 87 FR 3702, 3708.
Synexis commented that CADR is not an appropriate performance metric because it applies only to filtration devices and that any metric must consider the mechanism of action of the air cleaner and types of contaminants it addresses. (Synexis, No. 9 at p. 2)
Daikin commented that CADR primarily measures the capacity of the unit, but there are other air cleaning efficacy metrics that should be considered based on product categories. Daikin stated that metrics like CADR and MERV are similar to the capacity of delivering clean air and air cleaning efficacy respectively, but they are not an energy efficiency metric. (Daikin, No. 13 at p. 2)
DOE recognizes that other capacity metrics may be relevant for the removal of other air contaminants such as gases and microorganisms. However, for the scope of products covered by this proposed test procedure,
In the January 2022 RFI, DOE requested comment on whether the power measurement could vary based on the particulate test that is used to measure operating power. 87 FR 3702, 3708. If power measurement varies based on the particulate test, DOE requested comment on which particulate test (pollen, dust, or smoke) should be used as the basis for the power measurement in any Federal test procedure that DOE may develop. Alternately, DOE requested comment on whether it should consider requiring power measurements for each particulate test and use a simple or weighted average to determine operating power.
DOE also requested comment on whether cigarette smoke would be the appropriate particulate for determining a CADR rating of air cleaners under a DOE test procedure, should DOE adopt a measurement of CADR in a test procedure for air cleaners. If cigarette smoke is not the most appropriate particulate, DOE requested comment on other particulate(s) that would be more appropriate as the basis for measurement, including data and information to support such a recommendation.
Blueair commented that it supports the use of cigarette smoke as the appropriate particulate for CADR ratings as it can be a surrogate for much smaller particles that can be found in the home, but that any pollutants specified in AHAM AC-1-2020 could be suitable alternatives. (Blueair, No. 11 at p. 3) Blueair additionally supported using PM
The Joint Commenters recommended that DOE adopt an air cleaner metric based on a PM
Synexis commented that an air cleaner's energy consumption may vary based on the size of particles used in particulate tests because particulates of various sizes can cause filters to become entrained with pollutant particles and require greater pressure to move air through the device. Synexis further commented that power measurements for each particulate test would not be representative of real-world energy consumption and would not provide any useful data. (Synexis, No. 9 at p. 2) Testing conducted by DOE, as well as power consumption data provided in ENERGY STAR's database, do not indicate any substantive differences in power consumption among the smoke, dust, and pollen tests.
The CA IOUs recommended a PM
For compliance with the standards in tier one of the Joint Proposal, the Joint Stakeholders recommended that DOE permit Section 6.2 of AHAM AC-1-2020 for dust CADR to be applied as an alternative for calculating PM
Section 2.8 of AHAM AC-7-2022 Draft specifies that PM
Section 2.9 of AHAM AC-7-2022 Draft specifies the method used to calculate PM
The tests to determine smoke CADR and dust CADR are specified in Sections 5 and 6 of AHAM AC-1-2020. These sections of AHAM AC-1-2020 specify the procedure for introducing the smoke and dust particulates, conducting the natural decay test, and the measuring the decay with the air cleaner in operation. However, PM
While the allowable smoke and dust particle size for the smoke CADR and dust CADR tests in Sections 5 and 6 of AHAM AC-1-2020 is larger (
DOE requests comment on the Joint Stakeholders' recommendation of using dust CADR as calculated in Section 6 of AHAM AC-1-2020 as an alternative for calculating PM
DOE notes that AHAM AC-7-2022 Draft specifies calculating IEF using PM
Given the historic use of both smoke and dust particulates to define a metric for air cleaners, as well as the range of particle sizes covered by the smoke and dust test, DOE proposes to incorporate by reference Section 2.9 of AHAM AC-7-2022 Draft to specify testing with smoke and dust and calculating PM
Additionally, DOE proposes to reference Sections 5 and 6 of AHAM AC-1-2020 for conducting the smoke CADR and dust CADR tests.
DOE requests feedback on its proposal to incorporate by reference Section 2.9 of AHAM AC-7-2022 Draft to calculate PM
DOE also requests comment on its proposal to reference Sections 5 and 6 of AHAM AC-1-2020 to specify the test methods for determining smoke CADR and dust CADR, respectively.
In the January 2022 RFI, DOE requested comment on whether it should consider testing air cleaners at any other power level in addition to the maximum power level required by AHAM AC-1-2020. 87 FR 3702, 3708.
Consistent with AHAM AC-1-2020, Section 5.3.1 of AHAM AC-7-2022 Draft specifies that the active mode test for all conventional room air cleaners be performed with the air cleaner set to the highest flow rate setting.
Synexis stated that it was appropriate to test air cleaners at their maximum performance mode because it represents a worst-case scenario in terms of energy
As discussed, AHAM AC-7-2022 Draft specifies that the active mode test be performed at the highest flow rate with all air cleaning functions switched on, set to maximum. Section 1 of AHAM AC-7-2022 Draft includes an informative note stating the following: “The purpose of this standard is to have one standard for measurement of energy of air cleaners. The standard is designed in such a way to maximize the validity, repeatability and reproducibility of the testing, and thus to give manufacturers, public information groups and consumers information to compare air cleaners. AHAM recognizes that not all consumers will operate their air cleaner at maximum speed or conditions all the time. While it is possible to test air cleaners at different speeds and settings, the difficulty is to arrive at a consistent speed or function setting on all air cleaners for multiple manufacturers. The most consistent measurement for all air cleaners is to test at the Maximum Performance Test Setting.”
This informative note in AHAM AC-7-2022 Draft indicates that the requirement to perform testing at the maximum performance level provides the best balance among repeatability, reproducibility, and representativeness of test results at this time. For this reason, DOE has tentatively determined that maximum performance mode is the best approach currently established by the industry standard for producing test results during a representative average use cycle or period of use, while not being unduly burdensome to conduct. DOE is therefore proposing to adopt the active mode test provisions of AHAM AC-7-2022 Draft, including the requirement to test at the maximum performance mode.
DOE is aware that the AHAM task force has initiated an effort to develop test methods for automatic mode, and DOE is continuing to participate in this effort. If a test method to measure air cleaner performance when operating in automatic mode that produces results that are more representative of an average use cycle or period of use were to be developed, DOE would consider it in a future test procedure rulemaking.
Specific proposals regarding the active mode measurement requirements are discussed in the following paragraphs.
Section 5.3 of AHAM AC-7-2022 Draft specifies that all products shall be tested with the air cleaner set to the highest flow rate setting, also known as maximum performance mode. Additionally, Section 5.3 of AHAM AC-7-2022 Draft specifies that for products that have air cleaning functionality beyond mechanical filtration (
DOE proposes to reference Section 5.3 of AHAM AC-7-2022 Draft regarding test unit setup requirements for testing in maximum performance mode.
DOE requests comment on its proposal to reference Section 5.3 of AHAM AC-7-2022 Draft to test units in maximum performance mode.
Section 5.4 of AHAM AC-7-2022 Draft specifies the configuration for secondary functions, which are unrelated to air cleaning (
Section 5.5 of AHAM AC-7-2022 Draft specifies the configuration of control functions during active mode testing. Control functions include any programmable functions that may continue to be enabled when the primary function is inactive (
DOE proposes to reference this requirement to specify that control functions shall be in on mode and connected to any communication network during active mode testing as specified in Section 5.5 of AHAM AC-7-2022 Draft.
DOE requests comment on its proposal to reference Sections 5.4 and 5.5 of AHAM AC-7-2022 Draft to specify the configuration of secondary functions and control functions during active mode testing.
Section 5.7 of AHAM AC-7-2022 Draft specifies the methods for measuring active mode power. These methods include measuring the power consumption when operating the test unit within the test chamber at the same time as the smoke CADR test and dust CADR test or by measuring the power consumption during a supplemental power test outside of a test chamber.
More specifically, Section 5.7.1 of AHAM AC-7-2022 Draft specifies that the power consumption measurement can be conducted simultaneously with the smoke CADR or dust CADR test from Section 5.2.5 or 6.2.5 of AHAM AC-1-2020, respectively. Section 5.7.2 of AHAM AC-7-2022 Draft specifies an alternative method for measuring active mode power consumption, referred to as the “supplemental” test. This test can be used to determine the active mode power consumption outside of the test chamber used for smoke CADR and dust CADR testing. The supplemental power test specifies the same unit configuration and records power over a period of 15 minutes at no greater than 1 second intervals, averaging the power consumption over 13 minutes starting after the initial 2 minutes. AHAM AC-7-2022 Draft additionally specifies that if the test unit has pollutant indicators and they do not light up when no pollutant is present in the air, but light up when detecting pollutants, then the test unit cannot be tested outside the chamber to measure active mode power consumption.
Finally, Sections 5.7.3 and 5.7.4 of AHAM AC-7-2022 Draft specify the equations to determine the average active mode power consumption and the annual active mode energy use, respectively.
DOE performed testing at a third-party laboratory to investigate the similarity
As indicated in Table III.1, the percent difference between power consumption measured during the smoke CADR test and the supplemental out-of-chamber test ranged from -3.7 percent to +4.9 percent, with an average of +0.2 percent. Based on these data, DOE has tentatively determined that the power consumption of the out-of-chamber supplemental power test is closely comparable to the in-chamber smoke, and likely dust, CADR tests because measured power using the maximum performance mode is not significantly impacted by whether a particle is present. Accordingly, DOE proposes to reference Sections 5.7.1 through 5.7.4 of AHAM AC-7-2022 Draft to measure active mode power either in the test chamber (Section 5.7.1) at the same time as the smoke or dust CADR test or outside the chamber (Section 5.7.2) as a supplemental power test and to calculate average power (Section 5.7.3) and annual active mode energy use (Section 5.7.4).
DOE requests comment on its proposal to reference Sections 5.7.1 through 5.7.4 of AHAM AC-7-2022 Draft, which specify methods for measuring active mode power at the same time as the smoke or dust CADR test when the test unit is operating within the chamber and measuring the power consumption during a supplemental power test outside of a test chamber, respectively.
To enable consistent and meaningful representations of metrics most desirable to consumers, DOE is considering including an additional test to determine pollen CADR. Similar to dust and smoke CADR, pollen CADR provides a measurement of the air cleaner's performance to remove pollen from indoor air. Pollen CADR typically increases with increasing air cleaner energy use, and therefore DOE believes this is an appropriate metric to measure. Further, according to the Asthma and Allergy Foundation of America more than 50 million people in the United States experience various types of allergies each year and allergies are the sixth leading cause of chronic illness in the United States.
Section 7 of AHAM AC-1-2020 specifies the test procedure for determining paper mulberry pollen CADR. The method for measuring pollen CADR is the same as dust CADR and smoke CADR; however, the test duration is only 10 minutes compared to 20 minutes for the smoke test and dust test. The reduced test duration is specified because pollen decays faster than both dust and smoke and thus only 10 minutes is necessary to determine pollen CADR. All other test conditions remain the same including the test chamber, use of a recirculation and ceiling fan, and test equipment.
As discussed in section III.A of this NOPR, Section 2 of AHAM AC-1-2020 specifies the test procedure being applicable only to air cleaners within rated CADR ranges of 10 to 600 cfm for dust and cigarette smoke and 25 to 450 cfm for pollen. Given that DOE is proposing to reference the AHAM industry standards for the DOE air cleaner test procedure, including the pollen CADR test, DOE requests comment on whether it should also specify that the acceptable pollen CADR range from AHAM AC-1-2020 applies for measurements of pollen CADR. Specifically, DOE would consider specifying that the pollen CADR test is applicable for conventional room air cleaners with pollen CADR between 25 and 450 cfm.
Because this test is currently specified in the ENERGY STAR V. 2.0 Specification, DOE expects it would minimally increase test burden compared to the tests required for smoke CADR and dust CADR. While DOE is proposing to include only a pollen CADR test, it requests comment on whether it should also include an active mode power measurement associated with the pollen CADR test and specify a pollen CADR/W metric. If a pollen CADR/W metric is considered, DOE also welcomes comment on whether this measurement should be based only on active mode power consumption or if it should be calculated in a similar manner to the IEF metric, using energy consumption in both active mode and standby mode as opposed to active mode power.
DOE requests comment on its proposal to reference Section 7 of
DOE requests comment and data on the relationship between the pollen CADR measurement and the energy use of the air cleaner.
DOE requests comment on whether it should reference Section 2 of AHAM AC-1-2020, which specifies that the standard is applicable for air cleaners with pollen CADR of 25 to 450 cfm, for pollen CADR testing.
DOE also requests comment on whether it should specify measurement of active mode power consumption when conducting the pollen CADR measurement test.
DOE requests comment on whether it should consider specifying a pollen CADR/W metric and whether such a metric should be based on active mode power consumption or include energy consumption in both active mode and standby mode.
In the January 2022 RFI, DOE requested comment on consumer usage of air cleaners, in particular, the amount of time spent in active mode, standby mode, and off mode. 87 FR 3702, 3710. DOE requested comment on its example approach of defining an integrated CADR/W metric, in which the denominator would represent a weighted average of the power consumption associated with active mode, standby mode, and off mode, weighted by the amount of time spent in each mode.
In response to the January 2022 RFI, Blueair supported the use of the active mode and standby mode hours specified in ENERGY STAR V. 2.0 Specification, which assumes 16 active mode hours per day and 8 inactive mode hours per day, to calculate the annual energy consumption of qualifying air cleaners. (Blueair, No. 11 at p. 3) Daikin commented that DOE's assumption that an air cleaner runs at 100-percent capacity for 16 hours a day is flawed and asserted that most air cleaners currently on the market are recommended by the manufacturer to operate in automatic mode, which runs the unit at 100-percent capacity only when indoor air quality drops. (Daikin, No. 13 at pp. 2-3) The CA IOUs presented data from a survey conducted by Evergreen Economics, which indicated a wide range of active mode operating hours: 23 percent of respondents reported operating their air cleaners all day (
AHAM AC-7-2022 Draft Section 5.7.4 specifies the calculation for E
DOE is proposing to align with the estimated active mode annual hours specified in AHAM AC-7-2022 Draft (corresponding to 16 hours per day) and consistent with the ENERGY STAR V. 2.0 specification. As discussed, the informative note in Section 1 of AHAM AC-7-2022 Draft acknowledges that not all consumers will operate their air cleaner at maximum speed or conditions all the time. For the reasons discussed in section III.F.3 of this document, DOE has tentatively determined, in accordance with AHAM AC-7-2022 Draft, that the most consistent measurement for all air cleaners is to test in the maximum performance mode and is proposing to allocate the same active mode annual hours in the proposed new appendix FF as in AHAM AC-7-2022 Draft. DOE is aware that the AHAM task force is initiating an effort to develop test methods for automatic mode. DOE will continue to participate in this effort and may consider any such method, including any associated active mode annual hours, in a future test procedure rulemaking.
DOE requests comment on its proposal to reference Section 5.7.4 of AHAM AC-7-2022 Draft, which specifies the calculation of active mode energy consumption using an estimated 5,840 hours per year in active mode.
In the January 2022 RFI, DOE requested comment on the suitability of the standby power measurement procedure specified in AHAM AC-1-2020, IEC 62301 Ed. 2.0, or any other test method for measuring standby mode and off mode energy use of air cleaners, in light of EPCA's requirement in 42 U.S.C. 6295(gg)(2)(A) for DOE to consider the most current version of IEC Standard 62301. 87 FR 3702, 3709.
The CA IOUs commented that DOE should test standby power in the as-shipped condition, with any manufacturer's recommended settings for normal use enabled. (CA IOUs, No. 10 at p. 8) As discussed further in this section, DOE is proposing to reference the relevant sections of AHAM AC-7-2022 Draft pertaining to the standby power measurement, which includes the specification that standby power be tested in the as-shipped condition.
Synexis commented that a standby mode power test may provide baseline energy use data, but maximum energy utilization would occur when the air cleaner is operating, and that many air cleaners are intended to operate continuously. (Synexis, No. 9 at p. 3) Synexis further commented that if standby mode power is tested, the test time period would need to be 24 hours to provide meaningful results. (Synexis, No. 9 at p. 5) DOE has initially determined based on stakeholder comments and a review of existing test standards that testing an air cleaner in standby mode would be representative of average use. Further, as noted in section III.F.7 of this document, DOE is proposing to align with the estimated active mode annual hours specified in AHAM AC-7-2022 Draft (corresponding to 16 hours per day). AHAM AC-7-2022 Draft additionally estimates the remaining hours in a day are spent in standby mode (
DOE notes that while the January 2022 RFI requested comment on the use of AHAM AC-1-2020 or IEC 62301 Ed. 2.0, AHAM AC-7-2022 Draft references IEC 62301 Ed. 2.0 for conducting standby mode tests. Section 6 of AHAM AC-7-2022 Draft defines the setup and procedures to measure air cleaner standby mode power consumption. DOE proposes to incorporate by reference all subsections of Section 6 of AHAM AC-7-2022 Draft, which establish conditions of measurement, preparation of the air cleaner model for testing, test procedure, test results, and the annual combined low power mode energy consumption calculations.
Section 6.3 of AHAM AC-7-2022 Draft references Section 5.3 of IEC 62301 Ed. 2.0 for the procedure to
Section 6.5 of AHAM AC-7-2022 Draft defines an annual combined low power mode energy consumption calculation based on
Consistent with the active mode energy consumption calculation, AHAM AC-7-2022 Draft specifies 2,920 annual hours in standby mode, which is equivalent to 8 hours per day and is consistent with the estimated standby mode hours specified in the ENERGY STAR V. 2.0 Specification. Accordingly, DOE proposes to reference these requirements for standby mode.
DOE requests feedback on its proposal to reference Section 6 of AHAM AC-7-2022 Draft to determine annual combined low power mode energy consumption.
In the January 2022 RFI, DOE requested comment on the technical feasibility of integrating measures of standby mode and off mode energy consumption into the overall energy efficiency metric (
The Joint Commenters stated that it is technically feasible to integrate standby mode and off mode energy consumption into the overall energy efficiency metric and intend to propose a method to do so in the future. (Joint Commenters, No. 8 at p. 4)
Blueair commented that CADR/W was the appropriate metric to determine air cleaner efficiency as a function of the unit's performance output. (Blueair, No. 11 at pp. 2-4) Trane commented that the integrated CADR/W metric is appropriate and stated that additional metrics should be considered as well, such as noise thresholds to avoid occupant space disruption and lack of use. (Trane, No. 3 at p. 2) DOE is aware that noise and noise reduction is an important representation for air cleaners; however, DOE has initially determined that noise is unrelated to energy consumption and is therefore not a suitable performance metric for DOE's test procedure.
Synexis stated that CADR/W would not be an effective metric for air cleaners that do not utilize filtration (
The CA IOUs commented that an integrated performance metric that appropriately allocates active, standby, and off mode operating hours should be implemented for air cleaners and that it is technically feasible to integrate measures of standby and off mode energy consumption into an overall performance metric for air cleaners. The CA IOUs further commented that DOE should review survey information when allocating hours to active mode and standby modes for the calculation of an IEF. (CA IOUs, No. 10 at p. 8)
DOE's analysis shows that it is technically feasible to integrate active mode and standby mode energy consumption into an overall performance metric for air cleaners. Specifically, active mode and standby mode power consumption can be combined into the AEC metric using the respective estimated annual usage hours. Further, to express air cleaner performance as a function of its power use, DOE's analysis shows that an integrated metric, such as IEF, is technically feasible. This approach is similar to other DOE test procedures, such as room air conditioners and dehumidifiers, which specify a metric that is expressed as space conditioning function provided per unit power. DOE additionally notes that all products included in the scope of the proposed test procedure are those that could remove, destroy, and/or deactivate particulates. Accordingly, a CADR/W metric is appropriate. Additionally, DOE is proposing to include a calculation for representation of room size, in square feet, as discussed in section III.I of this document.
DOE proposes to incorporate by reference Section 7 of AHAM AC-7-2022 Draft, which provides a calculation to determine AEC and IEF for air cleaners as follows:
DOE requests comment on its proposal to reference Section 7 of AHAM AC-7-2022 Draft for the AEC and IEF calculations. Should AHAM AC-7-2022 Draft specify a different method to calculate AEC and/or IEF, DOE requests comment on the new methodology, the reasons for adopting this new methodology, and the impact, if any, of using the new methodology compared to the equations proposed in this document.
DOE is aware that air cleaner manufacturers typically include several representations in marketing materials for their air cleaner models (
Room size would strongly impact the capacity of the air cleaner that would be required to clean the air in the desired room. For instance, if the air cleaner is too small compared to the size of the room it is being used in, it will be ineffective, thus providing low efficiency. Conversely, if an air cleaner is too big for the room that it is operated in, it will clean the air very quickly and still continue operating, leading to wasted energy use. Therefore, it is important that an air cleaner be selected such that its capacity (expressed in terms of its CADR) is appropriate for the size of the room that it is intended to be used in. Additionally, for any air cleaner, the represented values of CADR and IEF are inherently a function of the room size that the unit is expected to operate in;
Section 8.6 and Annex E of AHAM AC-1-2020 specify a calculation for the effective room size based on standard construction criteria for rooms and a history of the natural decay rate of small particles as determined for cigarette smoke. Specifically, the room size calculation is based on the ability of the air cleaner to reduce the concentration of particles, expressed in CADR, in a room at steady-state to a new steady-state concentration that is 80 percent less than the original when the air cleaner is operating. The calculation includes additional assumptions such as a mixing factor equal to 1.0, an air exchange rate of 1 per hour, a cigarette smoke particle natural decay equal to the average background natural decay (from statistical study), a ceiling height of 8 ft, and a cigarette smoke particle generation or influx rate such that a cigarette smoke particle concentration of 1 is maintained at the initial steady state. Based on its estimations, AHAM AC-1-2020 specifies that the effective room size, in square feet, that can be serviced by an air cleaner is 1.55 times the smoke CADR value of the air cleaner.
DOE is proposing to include this calculation as a represented value for room size. Specifically, DOE is proposing to include in 10 CFR 429.67 that the effective room size be calculated as the product of 1.55 and the basic model's represented value of smoke CADR. DOE further proposes that this represented value of effective room size, in square feet, be rounded to the nearest whole number.
While DOE is proposing to align with AHAM AC-1-2020 to specify that the effective room size be calculated from smoke CADR, DOE welcomes comment on if it should consider using PM
DOE requests comment on its proposal to include a calculation from AHAM AC-1-2020 for the effective room size that can be serviced by an air cleaner. DOE requests comment on whether it is appropriate to use smoke CADR as the metric to calculate effective room size or if it should be based on PM
DOE is proposing the following sampling plan and rounding requirements applicable to any representations of energy consumption or energy efficiency of air cleaners. The sampling requirements would be included in the proposed 10 CFR 429.67. Specifically, DOE is proposing that the general sampling requirements of 10 CFR 429.11 for selecting units to be tested be applicable to air cleaners. In addition, DOE is proposing that for each air cleaner basic model, a sufficient sample size must be randomly selected to ensure that a representative value of energy consumption for a basic model is greater than or equal to the higher of the mean of the sample or upper 95 percent confidence limit (“UCL”) of the true mean divided by 1.10. For IEF or other measure of energy consumption where a higher value is preferable to the consumer, the representative value shall be less than or equal to the lower of the mean of the sample or the lower 95 percent confidence limit (“LCL”) of the true mean divided by 0.90. The mean, UCL, and LCL are calculated as follows:
This proposed sampling plan for air cleaners is consistent with sampling plans already established for portable
DOE also proposes that all calculations be performed with the unrounded measured values, and that representations of pollen CADR, smoke CADR, dust CADR, and PM
As discussed, manufacturers would not be required to test according to the DOE test procedure until such time as compliance is required with energy conservation standards for air cleaners, should DOE establish such standards. Were DOE to establish test procedures as proposed, manufacturers choosing to make voluntary representations would be required to test the subject air cleaner according to the established test procedure, and any such representations would have to fairly disclose the results of such testing.
DOE is not proposing any certification or reporting requirements for air cleaners at this time. DOE will propose certification requirements through a separate rulemaking in the future.
DOE seeks comment on the proposed sampling plan and rounding requirements for smoke CADR, dust CADR, PM
EPCA requires that test procedures proposed by DOE not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) DOE proposes to reference industry standards AHAM AC-7-2022 Draft, AHAM AC-1-2020, and IEC 62301 Ed. 2.0 to measure pollen CADR, smoke CADR, dust CADR, and active mode and standby mode power consumption. DOE also proposes to use these measured values to calculate PM
Based on quotes from third-party laboratories, DOE estimates average testing costs to be approximately $3,000 to test one unit according to AHAM AC-1-2020 at such a laboratory. These costs would include the tests to determine pollen CADR, smoke CADR, dust CADR, active mode power, and standby mode power. DOE typically requires at least two units to be tested for each basic model. Therefore, DOE estimates that manufacturers would incur testing costs of approximately $6,000 per basic model (because of the minimum sample size of two units, as specified in 10 CFR 429.11(b)).
DOE requests comment on its initial determination of the costs for testing according to the proposed new air cleaner test procedure. DOE also requests comment on the potential impact to manufacturers from the proposed new air cleaner test procedure.
DOE's established practice is to adopt relevant industry standards as DOE test procedures unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that product during a representative average use cycle or period of use. Section 8 of appendix A of 10 CFR part 430 subpart C. In cases where the industry standard does not meet EPCA statutory criteria for test procedures, DOE will make modifications through the rulemaking process to these standards as the DOE test procedure.
The test procedure for air cleaners at the proposed new appendix FF references AHAM AC-7-2022 Draft, which specifies the methods of measurement for active mode power consumption of conventional room air cleaners, and IEC 62301 Ed. 2.0, which is referenced in AHAM AC-7-2022 Draft for the measurement of standby mode power consumption. Proposed new appendix FF also references AHAM AC-1-2020, which specifies the methods to determine smoke CADR and dust CADR and is also referenced in AHAM AC-7-2022 Draft to specify the test chamber setup requirements. AHAM AC-7-2022 Draft specifies definitions, test setup, instrumentation, test methods for the measurement of active mode and standby mode power consumption, and calculation of AEC and IEF. The industry standards DOE proposes to incorporate by reference are discussed in further detail in section IV.N of this document.
DOE requests comments on the benefits and burdens of referencing the identified industry standards in the proposed new test procedure for air cleaners.
EPCA prescribes that, if DOE amends a test procedure, all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with that amended test procedure, beginning 180 days after publication of such a test procedure final rule in the
If DOE were to publish a test procedure, EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. (
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
The following sections detail DOE's IRFA for this test procedure rulemaking.
Currently, no energy conservation standards or test procedures are prescribed by DOE for air cleaners. On July 15, 2022, DOE published the July 2022 Final Determination in which it determined that air cleaners qualify as a “covered product” under EPCA. 87 FR 42297. DOE determined in the July 2022 Final Determination that coverage of air cleaners is necessary or appropriate to carry out the purposes of EPCA. Accordingly, air cleaners are included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292)(a)(20)) In this NOPR, DOE proposes to establish a new test procedure for air cleaners that would include methods to (1) measure the performance of the covered product and (2) use the measured results to calculate an IEF to represent the energy efficiency of an air cleaner.
EPCA, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B
DOE uses the Small Business Administration (“SBA”) small business size standards to determine whether manufacturers qualify as “small businesses,” which are listed by the North American Industry Classification System (“NAICS”). The SBA considers a business entity to be a small business if, together with its affiliates, it employs less than a threshold number of workers specific in 13 CFR part 121.
Air cleaner manufacturers, who produce the products covered by this rulemaking, are classified under NAICS code 335210: “Small Electrical Appliance Manufacturing.” The SBA sets a threshold of 1,500 employees or fewer for an entity to be considered a small business for this category.
DOE conducted a focused inquiry into small business manufacturers of the products covered by this rulemaking. DOE reviewed AHAM's database of Certified Room Air Cleaners,
DOE initially identified 31 OEMs offering covered air cleaners for the U.S. market. Of the 31 OEMs identified, DOE estimates that five qualify as small domestic OEMs.
In this NOPR, DOE proposes to establish a new test procedure for air cleaners at appendix FF. DOE proposes to incorporate by reference in part 430 the industry standards AHAM AC-7-2022 Draft, AHAM AC-1-2020, and IEC 62301 Ed. 2.0. Specifically, DOE proposes to specify the following provisions from within the referenced industry standards:
(1) From AHAM AC-7-2022 Draft, the following items:
(a) Definition of “conventional room air cleaners” in 10 CFR 430.2, which would be used to specify the scope of the air cleaners test procedure in the proposed new appendix FF;
(b) Definitions of terms that are relevant to the test procedure;
(c) Test setup requirements for electrical supply and test chamber, which additionally include a reference to AHAM AC-1-2020;
(d) Instrumentation requirements for power measuring instruments and temperature and relative humidity measuring devices;
(e) Active mode and standby mode power measurements; the standby mode power measurement method additionally includes a reference to IEC 62301 Ed. 2.0 for the test conduct; and
(f) Calculations for PM
(2) From AHAM AC-1-2020, test methods for determining the pollen CADR, smoke CADR, and dust CADR, calculation of effective room size, and test chamber construction and equipment.
This NOPR also proposes requirements regarding the sampling plan and representations for air cleaners at 10 CFR 429.67. DOE also proposes rounding requirements for the measured and calculated values of the air cleaners test procedure.
Were the proposed test procedure and associated provisions made final, manufacturers would not be required to test according to the DOE test procedure until such time as compliance is required with energy conservation standards for air cleaners, should DOE establish such standards. Were DOE to establish test procedures as proposed, manufacturers choosing to make voluntary representations would be required to test covered air cleaners according to the established test procedure, and any such representations would have to fairly disclose the results of such testing.
Air cleaner manufacturers, including small manufacturers, would not be required to test according to the proposed test procedure (other than making voluntary representations of energy consumption) until the compliance date of any energy conservation standards for products in these categories. As detailed in section III.K.1 of this document, DOE estimated that it would cost approximately $3,000 to test one unit of a basic model to obtain all the necessary measurements proposed in this document.
As previously discussed, DOE initially identified five domestic OEMs that qualify as “small businesses.” Based on a review of publicly available model databases and individual company product catalogues, DOE estimated the number of air cleaners covered by this test procedure proposal for each small business. DOE estimated the number of air cleaners covered by this test procedure proposal for each small business ranges from two unique basic covered models to 10 unique basic covered models, depending on the specific small business. As previously detailed, DOE estimated it would cost air cleaner manufacturers approximately $6,000 per basic model to be tested at a third-party laboratory facility. Therefore, DOE estimated that a small business could incur anywhere from $12,000 to $60,000, should DOE adopt the test procedure as proposed and establish energy conservation standards.
DOE used subscription-based market research tools
To the extent that air cleaner manufacturers currently make claims regarding the energy consumption of their models, DOE observed that they typically do so in accordance with ENERGY STAR V. 2.0 Specification, which references AHAM AC-1-2020. Manufacturers currently making voluntary representations of air cleaners would be required to test according to the proposed test procedure beginning 180 days after the final rule, should DOE finalize the proposal.
Based on a review of AHAM's database of Certified Room Air Cleaners and ENERGY STAR's data set of Certified Air Purifiers, DOE identified only one small domestic OEM making claims regarding the energy consumption of their air cleaner models. Based on Dun & Bradstreet reports, this small domestic OEM has an estimated annual revenue of approximately $3.6 million. As previously discussed, DOE estimates a per-basic model test cost of $6,000. Therefore, DOE estimates that the potential costs associated with re-testing would be minimal, accounting for approximately 0.5 percent of annual revenue for this small business.
DOE requests comments on its finding that there are five small, domestic OEMs of air cleaners. DOE also requests comment on its findings that costs are small relative to annual revenue for
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the proposed rule being considered.
DOE considered alternative test methods for air cleaners and tentatively determined that there are no better alternatives than the procedures proposed in this NOPR. DOE expects the proposals outlined would have no impact before an amended energy conservation standard is adopted, unless manufacturers make representations regarding energy use or efficiency. DOE examined relevant industry test standards, and the Department incorporated these standards in the proposed test procedure whenever appropriate. Specifically, DOE proposes to incorporate by reference the industry standards AHAM AC-7-2022 Draft, AHAM AC-1-2020, and IEC 62301 Ed. 2.0.
Additionally, manufacturers subject to DOE's energy efficiency standards may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 430, subpart E, and 10 CFR part 1003 for additional details for additional details.
Manufacturers of covered products must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment. (
DOE is not proposing any certification or reporting requirements for air cleaners in this NOPR. Instead, DOE may consider proposals to establish certification requirements and reporting for air cleaners under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this NOPR, DOE proposes a new test procedure that it expects will be used to develop and implement future energy conservation standards for air cleaners. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this proposed regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
The proposed regulatory action to establish a test procedure for measuring the energy efficiency of air cleaners is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The proposed test procedure for air cleaners would incorporate testing methods contained in certain sections of the following commercial standards: AHAM AC-7-2022 Draft, AHAM AC-1-2020, and IEC 62301 Ed. 2.0. DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
AHAM AC-7-2022 Draft is a voluntary industry-accepted test procedure that measures active mode and standby mode power consumption of air cleaners. The proposed test procedure in this NOPR generally references AHAM AC-7-2022 Draft including provisions for: definitions, test conditions, instrumentation, active mode and standby mode power measurement, and calculation of PM
AHAM AC-1-2020 is a voluntary industry-accepted test procedure that provides test methods to measure the relative reduction of particulate matter, including smoke and dust, suspended in the air in a specified test chamber when an air cleaner is in operation. The proposed test procedure in this NOPR generally references Sections 5 and 6 of AHAM AC-1-2020 to determine the smoke and dust CADR of the air cleaner test unit. AHAM AC-1-2020 is also
These standards are reasonably available from AHAM (
IEC 62301 Ed. 2.0 is an international standard that specifies methods of measurement of electrical power consumption of household appliances in standby mode(s) and other low power modes, as applicable. The proposed new appendix FF references AHAM AC-7-2022 Draft, to specify the standby mode power consumption test method, which further references IEC 62301 Ed. 2.0 for the measurement of air cleaners standby power consumption. IEC 62301 Ed. 2.0 is reasonably available from IEC (
ASTM E741-11(2017) specifies techniques using tracer gas dilution for determining a single zone's air change with the outdoors, as induced by weather conditions and by mechanical ventilation. The proposed new appendix FF references AHAM AC-7-2022 Draft to specify the test chamber air exchange rate, which further references ASTM E741-11(2017) as the method to measure test chamber air exchange rate. ASTM E741-11(2017) is reasonably available from ASTM (
The time and date of the webinar meeting are listed in the
Any person who has an interest in the topics addressed in this document, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit requests to speak by email to:
DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the webinar and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE will provide a general overview of the topics addressed in this rulemaking, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this proposed rulemaking. The official conducting the webinar/public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar.
A transcript of the webinar will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
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Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
(1) DOE requests comment on its proposal to define the scope of the proposed air cleaner test procedure as those air cleaners that meet the definition of a conventional room air cleaner as defined in Section 2.1.1 of AHAM AC-7-2022 Draft.
(2) DOE requests comment on its proposal to reference Sections 2.1.1, 2.1.3.1, and 2.1.3.2 of AHAM AC-7-2022 Draft in 10 CFR 430.2 for the definitions of conventional room air cleaner, portable conventional room air cleaner, and fixed conventional room air cleaner, respectively.
(3) DOE requests comment on whether it should reference Section 2 of AHAM AC-1-2020, which specifies that the standard is applicable for air cleaners only within rated CADR ranges of 10 to 600 cfm for dust and cigarette smoke. Additionally, DOE requests comment on whether this CADR range should be specified for PM
(4) DOE requests comment on its proposal to adopt the substantive provisions of AHAM AC-7-2022 Draft with certain modifications.
(5) DOE requests comment on its proposal to incorporate by reference AHAM AC-1-2020, which is referenced in AHAM AC-7-2022 Draft, as well as to specify provisions related to the measurement of pollen CADR, smoke CADR, and dust CADR.
(6) DOE also requests comment on whether it should consider specifying that KCl is an allowable alternate to cigarette smoke in the measurement of smoke CADR, even if AHAM AC-1-2022 Draft is not published by the time DOE publishes its final rule. DOE requests data and information on the implications of using cigarette smoke and KCl interchangeably when performing air cleaner performance tests. DOE requests data and information on how a CADR value obtained using KCl compares to the CADR value obtained using cigarette smoke.
(7) DOE requests comment on its proposal to reference IEC 62301 Ed. 2.0, which is referenced in AHAM AC-7-2022 Draft for the instrumentation and testing provisions for measuring standby mode power consumption.
(8) DOE requests comment on its proposal to reference ASTM E741-11(2017), which is referenced in AHAM AC-7-2022 Draft for determining the test chamber air exchange rate.
(9) DOE requests comment on whether the m-CADR value specified in AHAM AC-5-2022 would change, and if so, how, if a different type of microorganism was used for testing from the same general microorganism category (
(10) DOE requests comment on whether measurements taken every 2 minutes for a duration of 10 minutes, as specified in Section 7.3 of AHAM AC-5-2022, is sufficient to determine m-CADR. DOE also requests comment on the duration for which a sample must be collected for each measurement point.
(11) Additionally, if stakeholders indicate that operating the test unit for 10 minutes is sufficient, DOE requests comment on whether the natural decay test should also be conducted for only 10 minutes. DOE also requests comment on whether it is reasonable for the natural decay curve for microorganisms to be increasing during the first 10-15 minutes of the test, and if not, how should DOE mitigate this issue.
(12) DOE requests comment on its proposal to include definitions for the aforementioned terms, via reference to AHAM AC-7-2022 Draft, in the proposed new appendix FF. Should the AHAM task force consider any changes to any of these definitions or include definitions for additional terms that would be relevant to DOE's proposed test procedure, DOE requests comment on such changes and the justification for DOE to consider including them in its test procedure for air cleaners.
(13) DOE requests comment on its proposal to reference Section 3.1 of AHAM AC-7-2022 Draft for the electrical supply requirements for active mode and standby mode power measurement.
(14) DOE requests comment on its proposal to reference Section 3.6.1 of AHAM AC-7-2022 Draft for the air cleaner conditioning requirements.
(15) DOE requests comment on whether the 48 hour burn-in time for air cleaners with UV lights is sufficient or if the burn-in time duration should be increased.
(16) DOE requests comment on its proposal to reference Section 3.6.2 of AHAM AC-7-2022 Draft, which references Section 4.6 of AHAM AC-1-2020 for the test unit placement instructions.
(17) DOE also requests comment on whether it should consider including the requirement from IEC 63086-1 that specifies that if the placement of the air cleaner is not specified by the manufacturer and the air cleaner's height is less than 28 inches, then the unit must be tested on the table. Specifically, DOE requests comment on whether the language in AHAM AC-7-2022 Draft which states that, “if the air cleaner is not a floor model” is clear to follow, without any ambiguity, or whether a quantitative metric such as unit height would be better to ensure consistent test setup.
(18) DOE also requests comment on whether it should include any placement instructions for air cleaners shipped with casters.
(19) DOE requests comment on its proposal to reference Section 3.6.3 of AHAM AC-7-2022 Draft regarding network connection requirements during active mode and standby mode tests. DOE also requests comment on the impact on repeatability and reproducibility when testing air cleaners with network functionality while connected to a network.
(20) DOE requests comment on whether the software update requirements are adequately specified or whether DOE should explicitly state that software updates must always be executed prior to running the tests.
(21) DOE requests comment on its proposal to reference Sections 3.1 to 3.6 of AHAM AC-7-2022 Draft for the test conditions and setup. Should AHAM AC-7-2022 Draft change any of these requirements between publication of this NOPR and publication of the final version of AHAM AC-7-2022, DOE requests comment on these changes, the reasons for these changes, and the impact of these changes on the overall air cleaners test procedure.
(22) DOE requests comment on its proposal to incorporate by reference Section 4 of AHAM AC-7-2022 Draft regarding instrumentation requirements, including the applicable provisions from relevant sections of IEC 62301 Ed. 2.0. Should AHAM AC-7-2022 Draft change any of these requirements between publication of this NOPR and publication of the final version of AHAM AC-7-2022, DOE requests comment on these changes, the reasons for these changes, and the impact of these changes on the overall air cleaner test procedure.
(23) DOE requests comment on the Joint Stakeholders' recommendation of using dust CADR as calculated in Section 6 of AHAM AC-1-2020 as an alternative for calculating PM
(24) DOE requests feedback on its proposal to incorporate by reference Section 2.9 of AHAM AC-7-2022 Draft to calculate PM
(25) DOE also requests comment on its proposal to reference Sections 5 and 6 of AHAM AC-1-2020 to specify the test methods for determining smoke CADR and dust CADR, respectively.
(26) DOE requests comment on its proposal to reference Section 5.3 of AHAM AC-7-2022 Draft to test units in maximum performance mode.
(27) DOE requests comment on its proposal to reference Sections 5.4 and 5.5 of AHAM AC-7-2022 Draft to specify the configuration of secondary functions and control functions during active mode testing.
(28) DOE requests comment on its proposal to reference Sections 5.7.1 through 5.7.4 of AHAM AC-7-2022 Draft, which specify methods for measuring active mode power at the same time as the smoke or dust CADR test when the test unit is operating within the chamber and measuring the power consumption during a supplemental power test outside of a test chamber, respectively.
(29) DOE requests comment on its proposal to reference Section 7 of AHAM AC-1-2020 for the pollen CADR measurement test.
(30) DOE requests comment and data on the relationship between the pollen CADR measurement and the energy use of the air cleaner.
(31) DOE requests comment on whether it should reference Section 2 of AHAM AC-1-2020, which specifies that the standard is applicable for air cleaners with pollen CADR of 25 to 450 cfm, for pollen CADR testing.
(32) DOE also requests comment on whether it should specify measurement of active mode power consumption when conducting the pollen CADR measurement test.
(33) DOE requests comment on whether it should consider specifying a pollen CADR/W metric and whether such a metric should be based on active mode power consumption or include energy consumption in both active mode and standby mode.
(34) DOE requests comment on its proposal to reference Section 5.7.4 of AHAM AC-7-2022 Draft, which specifies the calculation of active mode energy consumption using an estimated 5,840 hours per year in active mode.
(35) DOE requests feedback on its proposal to reference Section 6 of AHAM AC-7-2022 Draft to determine annual combined low power mode energy consumption.
(36) DOE requests comment on its proposal to reference Section 7 of AHAM AC-7-2022 Draft for the AEC and IEF calculations. Should AHAM AC-7-2022 Draft specify a different method to calculate AEC and/or IEF, DOE requests comment on the new methodology, the reasons for adopting this new methodology, and the impact, if any, of using the new methodology compared to the equations proposed in this document.
(37) DOE requests comment on its proposal to include a calculation from AHAM AC-1-2020 for the effective room size that can be serviced by an air cleaner. DOE requests comment on whether it is appropriate to use smoke CADR as the metric to calculate effective room size or if it should be based on PM
(38) DOE seeks comment on the proposed sampling plan and rounding requirements for smoke CADR, dust CADR, PM
(39) DOE requests comment on its initial determination of the costs for testing according to the proposed new air cleaner test procedure. DOE also requests comment on the potential impact to manufacturers from the proposed new air cleaner test procedure.
(40) DOE requests comments on the benefits and burdens of referencing the identified industry standards in the proposed new test procedure for air cleaners.
(41) DOE requests comments on its finding that there are five small, domestic OEMs of air cleaners. DOE also requests comment on its findings that costs are small relative to annual revenue for small manufacturers that currently make voluntary representations.
The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
This document of the Department of Energy was signed on September 28, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE is proposing to further amend 10 CFR parts 429 and 430 (as proposed at 87 FR 14622, March 15, 2022) as set forth below:
42 U.S.C. 6291-6317, 28 U.S.C. 2461 note.
(a)
(2) For each basic mode of air cleaners, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of annual energy consumption or other measure of energy consumption of a basic mode for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample:
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10:
And
(ii) Any represented value of the integrated energy factor or other measure of energy consumption of a basic mode for which consumers would favor higher values shall be less than or equal to the high:
(A) The mean of the sample:
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90:
And
(3) Any represented value of the pollen, smoke, dust, and PM
(4) Any represented value of the effective room size, in square feet, of a basic model must be calculated as the product of 1.55 and the represented smoke CADR value of the basic model as determined in paragraph (a)(3) of this section. Round the value of the effective room size, in square feet, to the nearest whole number.
(5) Round the value of the annual energy consumption of a basic model to the nearest 0.1 kWh/year.
(6) Round the value of the integrated energy factor of a basic model to the nearest 0.1 CADR/W.
(b) [Reserved]
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(1) The term
(2) The term
a. Redesignating paragraphs (i)(1) through (6) as (i)(3) through (8);
b. Adding new paragraphs (i)(1) and (2) and paragraph (j)(4); and
c. Revising paragraph (p)(7).
The additions and revision read as follows:
(i) * * *
(1) ANSI/AHAM AC-1-2020 (“AHAM AC-1-2020”),
(2) AHAM AC-7-2022 Draft,
(j) * * *
(4) ASTM E741-11 (Reapproved 2017) (“ASTM E741-11(2017)”),
(p) * * *
(7) IEC 62301,
(hh)
(2) The PM
(3) The active mode and standby mode power consumption, expressed in watts, shall be measured in accordance with sections 5 and 6, respectively, of appendix FF of this subpart.
(4) The annual energy consumption, expressed in kilowatt-hours per year, and the integrated energy factor, expressed in CADR per watts (CADR/W), for conventional room air cleaners, shall be measured in accordance with section 7 of appendix FF of this subpart.
(5) The estimated annual operating cost for conventional room air cleaners, expressed in dollars per year, shall be determined by multiplying the following two factors:
(i) The annual energy consumption as calculated in accordance with section 7 of appendix FF of this subpart, and
(ii) A representative average unit cost of electrical energy in dollars per kilowatt-hour as provided by the Secretary, the resulting product then being rounded off to the nearest dollar per year.
Beginning [
DOE incorporated by reference in § 430.3 the entire standard for AHAM AC-1-2020, AHAM AC-7-2022 Draft, ASTM E741-11(2017), and IEC 62301. However, only enumerated provisions of AHAM AC-1-2020, AHAM AC-7-2022 Draft, and IEC 62301 apply to this appendix, as follows:
(a) Sections 4.2 through 4.6 as specified in section 3 of this appendix;
(b) Sections 5 through 7 as specified in section 5 of this appendix;
(c) Section 8.1 as specified in section 5 of this appendix;
(d) Annex A as specified in section 3 of this appendix;
(e) Annex I as specified in section 2 of this appendix.
(a) Sections 2.2 and 2.3, sections 2.4.1 through 2.4.2.4, and sections 2.6 through 2.8 as referenced in section 2 of this appendix;
(b) Section 2.9 as referenced in section 2 and section 5.3 of this appendix;
(c) Sections 3.1 through 3.6.3 as specified in section 3 of this appendix;
(d) Section 4, excluding section 4.1.4, as specified in section 4 of this appendix;
(e) Sections 5.3 through 5.7.4 as specified in section 5 of this appendix;
(f) Section 6 as specified in section 6 of this appendix;
(g) Section 7 as specified in section 7 of this appendix.
(a) Sections 4.4.1 through 4.4.3 as specified in section 4 of this appendix;
(b) Section 5.3 as specified in section 6 of this appendix.
This appendix contains the test requirements to measure the energy performance of a conventional room air cleaner, as defined at § 430.2.
The definitions in Sections 2.2, 2.3, 2.4.1 through 2.4.2.4, 2.6 through 2.8, and 2.9 of AHAM AC-7-2022 Draft apply to this test procedure, including the applicable provisions of AHAM AC-1-2020 as referenced in Section 2.9 of AHAM AC-7-2022 Draft.
Testing conditions shall be as specified in Sections 3.1 through 3.6.3 of AHAM AC-7-2022 Draft, including the applicable provisions of AHAM AC-1-2020 as referenced in Sections 3.2.1, 3.3, 3.4, 3.5, and 3.6.2 of AHAM AC-7-2022 Draft and the applicable provisions of ASTM E 741-11(2017) as referenced in Section 3.3 of AHAM AC-7-2022 Draft.
Test instruments shall be as specified in Section 4 of AHAM AC-7-2022 Draft, including the applicable provisions of IEC 62301 Ed. 2.0, except Section 4.1.4 of AHAM AC-7-2022 Draft.
Measurement of smoke CADR, dust CADR, and pollen CADR shall be as specified in Sections 5 through 7 of AHAM AC-1-2020, respectively. Measurement of active mode power shall be as specified in Sections 5.3 through 5.7.4 of AHAM AC-7-2022 Draft, including the applicable provisions of AHAM AC-1-2020 as referenced in Section 5.7.1 of AHAM AC-7-2022 Draft. Additionally, the following requirement is also applicable:
5.1.
5.1.1. PM
5.1.2. PM
Standby mode power consumption shall be measured as specified in Section 6 of AHAM AC-7-2022 Draft, including the applicable provisions of IEC 62301 Ed. 2.0.
Annual energy consumption, expressed in kilowatt-hours per year, and integrated energy factor, expressed in CADR per watt, shall be calculated as specified in Section 7 of AHAM AC-7-2022 Draft.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and request for comment.
The U.S. Department of Energy (“DOE”) proposes to establish definitions, a test procedure, and sampling requirements for portable electric spas. Currently, portable electric spas are not subject to DOE test procedures or energy conservation standards. The proposed test method references the relevant industry test standard. DOE is seeking comment from interested parties on the proposals within the notice of proposed rulemaking (“NOPR”).
DOE will accept comments, data, and information regarding this proposal no later than December 19, 2022. See section V, “Public Participation,” for details. DOE will hold a webinar on Thursday, November 17, 2022, from 1:00 p.m. to 4:00 p.m. See section V, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section V of this document.
The docket web page can be found at
Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-9870. Email
Ms. Kristin Koernig, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-3593. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in a public meeting (if one is held), contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
DOE proposes to incorporate by reference the following industry standard into 10 CFR part 430:
ANSI/APSP/ICC-14 2019 “American National Standard for Portable Electric Spa Energy Efficiency”; approved November 19, 2019.
Copies of ANSI/APSP/ICC-14 2019 can be obtained from the Pool & Hot Tub Alliance, 2111 Eisenhower Avenue, Suite 500, Alexandria, VA 22314, or by going to
See section IV.M of this document for a further discussion of this standard.
Portable electric spas are factory-built hot tubs or spas that are intended for the immersion of people in heated, temperature-controlled water that is circulated in a closed system. Currently, portable electric spas are not subject to DOE test procedures or energy conservation standards.
On September 2, 2022, DOE published a final determination (“September 2022 Final Determination”) in which it determined that portable electric spas qualify as a “covered product” under the Energy Policy and Conservation Act, as amended (“EPCA”).
Accordingly, portable electric spas are now included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(20))
The following sections discuss DOE's authority to establish a test procedure for portable electric spas and relevant background information regarding DOE's consideration of test procedures for this product.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of those consumer products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. Specifically, EPCA provides that DOE may, in accordance with certain requirements, prescribe test procedures for any consumer product classified as a covered product under section 6292(b). (42 U.S.C. 6293(b)(1)(B)) EPCA requires that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption. (42 U.S.C. 6295(gg)(2)(A)) Standby mode and off mode energy consumption must be incorporated into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product unless the current test procedures already account for and incorporate standby and off mode energy consumption or such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)(i)-(ii)) If an integrated test procedure is technically infeasible, DOE must prescribe a separate standby mode and off mode energy use test procedure for the covered product, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)(ii)) Any such amendment must consider the most current versions of the International Electrotechnical Commission (“IEC”) Standard 62301
If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed, the Secretary shall promptly publish in the
DOE is publishing this NOPR in accordance with the statutory authority in EPCA. DOE has determined that it was not necessary to do an early assessment request for information prior to initiating this NOPR, as the requirement in section 8(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”) to do an early assessment applies only when DOE is considering amending a test procedure, not establishing one. In this NOPR, DOE is proposing to establish a new test procedure for portable electric spas. Thus, an early assessment as to whether to move forward with a proposal to establish a test procedure for portable electric spas is not necessary.
DOE has not previously conducted a test procedure rulemaking for portable electric spas. DOE published in the
Although portable electric spas are not currently subject to Federal energy conservation standards under EPCA, several states have adopted standards—based on an industry-developed test procedure or a similar state test procedure—including California, Arizona, Colorado, Connecticut, Maine, Massachusetts, Nevada, Oregon, Rhode Island, Vermont, and Washington.
In accordance with section 3(a) of appendix A, DOE notes that it is deviating from the provision in appendix A that DOE will finalize coverage for a product/equipment at least 180 days prior to publication of a proposed rule to establish a test procedure. 10 CFR part 430, subpart C, appendix A, section 5(c). DOE is opting to deviate from this provision because of: (1) the availability of an industry standard for testing portable electric spas that is already in use by State efficiency programs; and (2) general support for development of a DOE test procedure based on this industry test method as expressed by commenters in response to the February 2022 NOPD.
In this NOPR, DOE proposes to establish a test procedure for measuring the energy use of portable electric spas in a new appendix GG to subpart B of 10 CFR part 430 (“appendix GG”). DOE proposes to incorporate the applicable industry test method published by the Pool and Hot Tub Alliance (“PHTA”)
DOE has reviewed the relevant sections of ANSI/APSP/ICC-14 2019 and has tentatively determined that ANSI/APSP/ICC-14 2019, in conjunction with the additional test methods and calculations proposed in this test procedure, would produce test results that reflect the energy efficiency, energy use, or estimated operating costs of a portable electric spa during a representative average use cycle. (42 U.S.C. 6314(a)(2))
DOE also has reviewed the burdens associated with conducting the proposed portable electric spa test procedure and, based on the results of such analysis, has tentatively determined that the proposed test procedure would not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) DOE's analysis of the burdens associated with the proposed test procedure is presented in section III.G.1 of this document.
This NOPR also proposes definitions for certain categories of portable electric spas in appendix GG and proposes requirements regarding the sampling plan and representations for portable electric spas in 10 CFR part 429.
The proposals in the NOPR are summarized in Table II.1 and discussed further in section III of this NOPR.
DOE notes that if DOE were to finalize a test procedure for portable electric spas, manufacturers would not be required to test according to the DOE test procedure until such time as compliance is required with any future applicable energy conservation standards that are established, unless manufacturers voluntarily chose to make representations as to the energy use or energy efficiency of a portable electric spa. See section III.H of this document for a complete discussion of compliance dates.
In the following sections, DOE discusses its proposals for the portable electric spa test procedure. For each proposal, DOE provides relevant background information, discusses relevant public comments, summarizes the proposal, and provides justification for the proposal.
DOE received general comments in response to the February 2022 NOPD that are relevant to establishing a test procedure for portable electric spas.
DOE received several comments that encouraged DOE to establish a test procedure for portable electric spas. PHTA and International Hot Tub Association (“IHTA”) encouraged DOE to move forward with both a test procedure and standard rule based on ANSI/APSP/ICC-14 2019. (PHTA/IHTA, EERE-2022-BT-DET-0006-0003 at p. 2)
In addition, DOE received several comments in response to the February 2022 NOPD that are relevant to topics discussed later in this NOPR. Those comments are summarized in the corresponding sections of this NOPR.
The applicable industry test procedure, ANSI/APSP/ICC-14 2019,
Section 3 of ANSI/APSP/ICC-14 2019 defines “portable electric spa” as “a factory-built electric spa or hot tub, supplied with equipment for heating and circulating water at the time of sale or sold separately for subsequent attachment.” This ANSI/APSP/ICC-14 2019 definition is identical to the definition used by CEC and adopted by DOE in the September 2022 Final Determination. 87 FR 54123, 54125. Section 3 of ANSI/APSP/ICC-14 2019 also defines certain categories of portable electric spas, as discussed in section III.B.2 of this NOPR.
DOE has reviewed the market for portable electric spas, and DOE has tentatively concluded that all products on the market can be tested using methods consistent with or similar to those in ANSI/APSP/ICC-14 2019 based on DOE's review. DOE has not found any products meeting DOE's definition of portable electric spa that would warrant exclusion from the scope of the DOE test procedure. Therefore, DOE proposes for the scope of the test procedure to include all products meeting the definition of “portable electric spa” in 10 CFR 430.2.
DOE requests comment on its proposal for the scope of the test procedure to include all products that meet the definition of “portable electric spa.” DOE requests comment on whether any additional products should be included within the scope of the proposed DOE test procedure. DOE requests comment on whether any products that meet the definition of “portable electric spa” should be excluded from the scope of the proposed DOE test procedure, and, if so, on what basis.
Section 3 of ANSI/APSP/ICC-14 2019 defines the following categories of portable electric spas:
(1)
(2)
(3)
(4)
The categories of portable electric spas defined in ANSI/APSP/ICC-14 2019 differ in the way they are tested and in the allowed energy consumption specified in ANSI/APSP/ICC-14 2019.
DOE requests comment on whether the definitions for the categories of portable spas proposed in section 3 of appendix GG (
Section 1.3 of ANSI/APSP/ICC-14 2019 states that spas operated for medical treatment or physical therapy, among other types,
DOE presumes that the types of spas operated for medical treatment or physical therapy intended to be referenced by Section 1.3 of ANSI/APSP/ICC-14 2019 would not be portable and, therefore, would not be considered a
DOE requests comment on whether there are portable electric spas used for special purposes, such as those operated for medical treatment or physical therapy, that should be excluded from the scope of the proposed DOE test procedure or tested in a different manner. If so, DOE requests comment on the method to determine the spas to exclude or test differently.
ANSI/APSP/ICC-14 2019 does not specify any minimum or maximum size to limit the scope of ANSI/APSP/ICC-14 2019.
Based on DOE's tentative conclusion that all portable electric spas on the market can be tested using methods consistent with or similar to those in ANSI/APSP/ICC-14 2019, DOE has tentatively determined that there is no need to limit the scope of the DOE test procedure based on the size of the portable electric spa. Therefore, DOE is not proposing to specify any minimum or maximum size to limit the scope of the DOE test procedure.
DOE requests comment on its tentative determination not to propose a minimum or maximum size to limit the scope of the proposed DOE test procedure.
As discussed, EPCA requires that any test procedures prescribed or amended must be reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of a given type of covered product during a representative average use cycle, and that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, taking into consideration the most current versions of IEC Standards 62301 and 62087, unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)) If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if that separate test is technically feasible. (42 U.S.C. 6295(gg)(2)(A)(ii))
EPCA defines three different modes of operation in 42 U.S.C. 6295(gg)(1)(A). “Active mode” means the condition in which an energy-using product is connected to a main power source, has been activated, and provides one or more main functions. “Standby mode” means the condition in which an energy-using product is connected to a main power source and offers one or more of the following user-oriented or protective functions: (a) to facilitate the activation or deactivation of other functions (including active mode) by remote switch (including remote control), internal sensor, or timer; or (b) continuous functions, including information or status displays (including clocks) or sensor-based functions. “Off mode” means the condition in which an energy-using product is connected to a main power source and is not providing any standby or active mode function.
Based on market research performed by DOE and analyses from CEC,
Based on DOE's research and analysis, DOE has found that, during most hours of the year, the spa contains no people, the spa cover is on, and the spa continually or periodically filters and heats the water in the spa, so that the spa is ready for use. During a smaller number of hours in a year, the spa cover is removed, and consumers use the spa. Consumers who prefer calm water in the spa may not activate any other spa features, such that the spa continues operating in the same operation mode as when the spa is covered. Conversely, other consumers may opt to activate bubbles, jets, or other features of the spa during usage.
Finally, research has shown that spas that are newly installed, or that were drained and re-filled, will experience a small number of hours during the year in which the spa is heating water from its initial water fill temperature to the preferred operating temperature.
DOE has tentatively concluded that all of these operational modes for portable electric spas would be considered “active modes” as defined in 42 U.S.C. 6295(gg)(1)(A)(i). As such, portable electric spas are considered to operate in active mode at all times, and standby mode and off mode, as defined by EPCA, are not applicable to portable electric spas. Therefore, DOE has tentatively concluded that there is no standby mode or off mode energy consumption that can be accounted for or incorporated into the proposed DOE test procedure.
DOE requests comment on whether it is necessary to measure standby mode or off mode energy consumption in the proposed DOE test procedure.
ANSI/APSP/ICC-14 2019 includes a method for measuring the energy consumption of portable electric spas while the cover is on and the spa is operating in its default operation mode.
According to analyses from CEC,
DOE is not aware of any existing test methods that measure the energy consumption in any other parts of active mode described in section III.C.2 of this NOPR. DOE has also been unable to determine any representative durations for those portions of active mode use.
As a result, DOE is proposing to use normalized standby power from ANSI/APSP/ICC-14 2019 as the performance-based metric for representing the energy use of portable electric spas. DOE is proposing to refer to this metric as “standby loss,” rather than “normalized standby power,” to avoid misinterpretation with the statutory definition of “standby mode” as defined in 42 U.S.C. 6295(gg)(1)(A)(iii). DOE also notes that the term “standby loss” has been used previously to describe the energy use of a water heater associated with maintaining water temperature.
DOE requests comment on its proposal to use standby loss, equivalent to the normalized standby power as defined by ANSI/APSP/ICC-14 2019, as the performance-based metric for representing the energy use of portable electric spas.
DOE requests comment on its proposed definition for “standby loss” in section 3.9 of appendix GG.
DOE requests comment and data on the representative operation of spas when in use with the cover removed, including typical frequency and duration of use, operation of jets or other features, and number of users. DOE also requests comment on how usage varies across spa types.
DOE requests comment on any test methods that measure the operation of spas when in use with the cover removed.
This section discusses DOE's proposal for a test method to measure all quantities needed to determine portable electric spa standby loss in a standardized and reproducible manner. DOE proposes to incorporate by reference the test method contained in certain applicable sections of ANSI/APSP/ICC-14 2019 as the basis for the portable electric spas test procedure. DOE also proposes several modifications and additions to ANSI/APSP/ICC-14 2019 to ensure the repeatability, reproducibility, and representativeness of test results. These proposals are discussed in sections III.D.1 through III.D.11 of this NOPR.
As discussed, ANSI/APSP/ICC-14 2019 contains a test method for measuring the standby loss
The test method in CAN/CSA-374-11 (R2021) is very similar to that in ANSI/APSP/ICC-14 2019, differing only in ambient temperature, floor design, and certain aspects of measurement. DOE is not aware of any other industry test methods for measuring standby loss in portable electric spas.
In response to the February 2022 NOPD, both PHTA/IHTA and CEC encouraged DOE to proceed with both a test procedure and an energy conservation standard based on ANSI/APSP/ICC-14 2019. (PHTA/IHTA, EERE-2022-BT-DET-0006-0003 at p. 2; CEC, EERE-2022-BT-DET-0006-0004 at p. 5)
DOE has reviewed ANSI/APSP/ICC-14 2019 and tentatively concluded that it is reasonably designed to produce test results to determine the energy use of portable electric spas during a representative average use cycle or period of use. DOE also reviewed CAN/CSA-374-11 (R2021) and has tentatively concluded that ANSI/APSP/ICC-14 2019 is a better test procedure to adopt for the DOE test procedure. Although the methods in ANSI/APSP/ICC-14 2019 and CAN/CSA-374-11 (R2021) are very similar, several of the requirements in CAN/CSA-374-11 (R2021) are specified in only International System of Units (“SI”) units and not specified in U.S. customary system (“USCS”) units (
Therefore, DOE is proposing to adopt specific sections of ANSI/APSP/ICC-14 2019 in DOE's proposed test procedure for portable electric spas, along with several proposed modifications and additions that DOE has tentatively determined would improve repeatability and representativeness of test results.
These specific modifications, additions, and exceptions are discussed in sections III.D.2 through III.D.11 of this NOPR.
DOE requests comment on its proposal to adopt specific sections of ANSI/APSP/ICC-14 2019 in DOE's proposed test procedure for portable electric spas.
DOE proposes to exclude the following sections, subsections, and appendices of ANSI/APSP/ICC-14 2019 from DOE's proposed test procedure:
• Sections 1, 2, 4, 6, and 7 in their entirety;
• Section 3 definitions for “cover, specified,” “fill volume,” “rated volume,” and “standby mode;”
• Subsections 5.1, 5.2, 5.5.2, 5.5.4, 5.5.5, and 5.7;
• Appendix A subsection “Chamber floor”; and
• Appendices B, C, and D.
The following paragraphs discuss the rationale for excluding each section from the proposed DOE test procedure.
Section 1 of ANSI/APSP/ICC-14 2019 discusses the scope of applicability of ANSI/APSP/ICC-14 2019. Certain categories of spas mentioned in Section 1, such as public spas and permanently installed or inground spas, are not applicable to the proposed DOE test procedure because they do not meet DOE's definition of portable electric spa. To avoid ambiguity regarding the applicability of the proposed Federal test procedure for portable electric spas, DOE is proposing to exclude Section 1 of ANSI/APSP/ICC-14 2019 in its entirety and to define instead the scope of the DOE test procedure in section 2 of appendix GG.
Section 2 of ANSI/APSP/ICC-14 2019 provides normative references to other industry test procedures. None of the normative references in section 2 are necessary for, or relevant to, the proposed DOE test procedure. As a result, DOE is proposing to exclude Section 2 of ANSI/APSP/ICC-14 2019 in its entirety.
Section 4.1 of ANSI/APSP/ICC-14 2019 requires that all certification bodies shall be accredited to ISO/IEC 17065. Section 4.2 of ANSI/APSP/ICC-14 2019 requires that all testing laboratories shall be qualified by a certification body or accredited by an accreditation body who is a member of the International Laboratory Accreditation Cooperation (“ILAC”). Sections 4.3 through 4.5 of ANSI/APSP/ICC-14 2019 provide further specifications regarding the roles and responsibilities of the testing laboratory, certification body, and/or accredited body. Section 5.2 and appendices B and C of ANSI/APSP/ICC-14 2019 specify further requirements and procedures for qualification of the testing laboratory by a certification body.
DOE is not proposing to adopt the requirement in Sections 4.1 and 4.2 of ANSI/APSP/ICC-14 2019 that a testing laboratory be qualified by a certification body accredited to ISO/IEC 17065 or accredited by an accreditation body who is a member of ILAC. DOE's experience in conducting testing according to ANSI/APSP/ICC-14 2019 and to the DOE test procedure as proposed in this NOPR suggests that the proposed DOE test procedure adequately outlines the details required to perform the test. As a result, the accreditation as specified in Section 4.2 of ANSI/APSP/ICC-14 2019 is not necessary to achieve repeatable, reproducible, and representative test results from DOE's proposed test procedure for portable electric spas. DOE has tentatively concluded that the requirement for a testing laboratory to be qualified by a certification body accredited to ISO/IEC 17065 or accredited by an accreditation body who is a member of ILAC is not necessary for the purposes of conducting the DOE test procedure as proposed. Therefore, DOE is proposing to exclude the sections in ANSI/APSP/ICC-14 2019 regarding laboratory qualification from the proposed DOE test procedure.
Section 6 of ANSI/APSP/ICC-14 2019 provides maximum allowable energy consumption functions;
Section 7 of ANSI/APSP/ICC-14 2019 specifies labeling requirements for portable electric spas. These labeling requirements are not applicable to the proposed DOE test procedure and would not be required for use were DOE to finalize a test procedure for portable electric spas. As a result, DOE is proposing to exclude Section 7 from the proposed DOE test procedure.
Section 5.1 of ANSI/APSP/ICC-14 2019 states that the purpose of the test method is to measure the energy consumption in standby mode, using a repeatable and reproducible test procedure, and that the results shall be used to calculate standby power demand for each basic model. Section 3 of ANSI/APSP/ICC-14 2019 defines “standby mode” as “all settings at default as shipped by the manufacturer, except water temperature, which may be adjusted to meet the test conditions. No manual operations are enabled.” As discussed in section III.C.3 of this NOPR, use of the term “standby mode” in ANSI/APSP/ICC-14 2019 is not consistent with the term “standby mode” as defined by EPCA, but rather, as explained in section III.C.2 of this NOPR, refers to a type of active mode as defined by EPCA. 42 U.S.C.
Section 5.5.2 of ANSI/APSP/ICC-14 2019 specifies that the spa shall be filled with water to the halfway point between the bottom of the skimmer opening and the top of the skimmer opening. In the absence of a wall skimmer, the fill volume is 6 inches below the overflow level of the spa. The resulting fill level is defined as “fill volume” and corresponds to the definition of “fill volume” provided in Section 3 of ANSI/APSP/ICC-14 2019. Section 3 of ANSI/APSP/ICC-14 2019 defines “rated volume” as the water capacity of a portable electric spa, in gallons (liters), as specified by the manufacturer on the spa, on the spa packaging, or the spa marketing materials. These water fill volume instructions and definitions are not consistent with DOE's proposed requirements for fill volume in section 4.1.4 of appendix GG, as explained in section III.D.6 of this NOPR. Therefore, DOE is proposing to exclude Section 5.5.2 and the volume definitions in Section 3 in ANSI/APSP/ICC-14 2019 from the proposed DOE test procedure.
Section 5.5.4 of ANSI/APSP/ICC-14 2019 specifies that the ambient air temperature shall be a maximum of 63 °F (17 °C) for the duration of the test. This temperature is inconsistent with DOE's proposed requirements for ambient temperature in section 4.2.1 of appendix GG, as explained in section III.D.3 of this NOPR. As a result, DOE is proposing to exclude Section 5.5.4 in ANSI/APSP/ICC-14 2019 from the proposed DOE test procedure.
Section 5.5.5 of ANSI/APSP/ICC-14 2019 states that the manufacturer's specified cover shall be used during the test. Section 3 of ANSI/APSP/ICC-14 2019 defines “cover, specified” as the cover that is provided or specified by the spa manufacturer. As discussed in section III.D.7 of this NOPR, DOE is proposing more explicit requirements regarding the cover that must be used during testing and is proposing to exclude Section 5.5.5 in ANSI/APSP/ICC-14 2019 from the proposed DOE test procedure.
Section 5.7 of ANSI/APSP/ICC-14 2019 specifies the equations for calculating “standby power” as that term is defined by ANSI/APSP/ICC-14 2019. These equations include standard temperature differences defined for each type of portable electric spa, among other defined parameters. DOE is proposing in section 4.3 of appendix GG to reproduce the equations in Section 5.7 of ANSI/APSP/ICC-14 2019, using the term “standby loss” instead of “standby power,” and to use different standard temperature differences that correspond with DOE's proposed water and air temperature requirements, as explained in section III.D.11 of this NOPR, and is proposing to exclude Section 5.7 in ANSI/APSP/ICC-14 2019 from the proposed DOE test procedure.
Appendix A of ANSI/APSP/ICC-14 2019 includes subsection “Chamber floor” that provides requirements for the floor on which the spa is installed, including the option to include 2 inches of insulation between the chamber floor and the spa. These requirements are not consistent with DOE's proposed requirements for the chamber floor in section 4.1.2 of appendix GG, as discussed in section III.D.4.b of this NOPR. Therefore, DOE is proposing to exclude the “Chamber floor” subsection of appendix A in ANSI/APSP/ICC-14 2019 from the proposed DOE test procedure.
Informative appendix D of ANSI/APSP/ICC-14 2019 contains a template for reporting data from the portable electric spa tests. This template would not be required for use were DOE to finalize a test procedure for portable electric spas, so DOE is proposing to exclude appendix D in ANSI/APSP/ICC-14 2019 from the proposed DOE test procedure.
DOE requests comment on whether any of the sections of ANSI/APSP/ICC-14 2019 that DOE is proposing to exclude from the proposed DOE test procedure should be included in the DOE test procedure.
DOE reviewed the ambient air temperature requirements specified in several existing test procedures for portable electric spas.
ANSI/APSP/ICC-14 2019 requires all portable electric spas to be tested with an ambient air temperature of 63 °F or lower.
An earlier version of the CEC portable electric spa test procedure, on which ANSI/APSP/ICC-14 2019 is based, specified an ambient air temperature of 60 °F ± 3 °F.
CAN/CSA-374-11 (R2021) specifies a mandatory test with ambient temperature of 44.6 °F ± 1.8 °F (7 °C ± 2 °C), and an optional cold-weather test with ambient temperature of 17.6 °F ± 1.8 °F (−8 °C ± 2 °C).
The proposed DOE test procedure will be used for representations of portable electric spa energy consumption throughout the United States; therefore, the specified ambient air temperature must reflect a nationally representative value. DOE determined a nationally representative ambient air temperature that could be applicable to portable electric spas throughout the United States by first determining the average annual air temperature across all states in the contiguous United States, and then calculating a weighted average across all states, weighted by the estimated number of spas installed in each state.
Based on the preceding analysis, DOE is proposing to specify 56.0 °F as the target ambient air temperature in section 4.2.1 of appendix GG.
Consistent with the earlier CEC test procedure, DOE is proposing to specify a tolerance of ±3 °F on the ambient air temperature during the test. DOE tentatively determines that specifying an allowable range of temperatures will provide greater assurance of repeatable, reproducible, and representative test results compared to the approach used in ANSI/APSP/ICC-14 2019 of specifying only a maximum ambient air temperature.
For the reasons discussed previously, DOE is proposing in section 4.2.1 of appendix GG to specify that the ambient air temperature must be maintained at 56.0 ± 3 °F for the duration of the test. DOE is also proposing to specify that this requirement applies to each individual ambient air temperature measurement taken for the duration of
DOE requests comment on its determination that, rounded to the nearest degree, 56 °F is a nationally representative ambient air temperature applicable to testing portable electric spas.
DOE requests comment on its proposal to specify an ambient air temperature of 56.0 ± 3.0 °F during testing. If commenters recommend a different ambient temperature, DOE requests data demonstrating the representativeness of that ambient temperature.
ANSI/APSP/ICC-14 2019 includes informative appendix A that provides minimum requirements for the chamber in which the portable electric spa is installed. These include optional specifications regarding chamber internal dimensions, air circulation, chamber insulation, and chamber floor insulation. The requirements to use this appendix are referenced only in the sections of ANSI/APSP/ICC-14 2019 pertaining to qualification of the test laboratory. As discussed in section III.D.2 of this NOPR, DOE is proposing to exclude all sections of ANSI/APSP/ICC-14 2019 pertaining to qualification of the test laboratory. As a result, none of the sections of ANSI/APSP/ICC-14 2019 that DOE is proposing to include in DOE's proposed test procedure require the use of appendix A to ANSI/APSP/ICC-14 2019.
DOE has reviewed appendix A to ANSI/APSP/ICC-14 2019 and has tentatively concluded that the specifications regarding chamber internal dimensions, air flow, and chamber insulation are appropriate for testing portable electric spas and would produce test results that reflect representative consumer use and would not be unduly burdensome to require for testing. However, DOE has tentatively concluded that the specifications regarding chamber floor would not provide test results that are representative of consumer use, as discussed further in section III.D.4.b of this NOPR.
Therefore, DOE proposes to specify in section 4.1.1 of appendix GG to install the portable electric spa in a chamber satisfying the requirements specified in appendix A to ANSI/APSP/ICC-14 2019 regarding chamber internal dimensions, air flow, and chamber insulation.
DOE requests comment on its tentative determination that the specifications regarding chamber internal dimensions, air flow, and chamber insulation in appendix A to ANSI/APSP/ICC-14 2019 are appropriate for testing portable electric spas and would produce test results that reflect representative consumer use and would not be unduly burdensome to require for testing.
DOE requests comment on the proposed chamber requirements in section 4.1.1 of appendix GG and whether any alternate or additional requirements are needed.
Appendix A to ANSI/APSP/ICC-14 2019 specifies that the chamber floor may be insulated with 2 inches of polyisocyanurate insulation, that the insulation shall be laid directly on a level surface, and that the insulating layer shall be sheathed with at least 0.5 inches of plywood. DOE conducted an analysis to determine whether these requirements would produce test results that reflect representative consumer use in a proposed test procedure for portable electric spas.
DOE reviewed installation and owner's manuals for a representative sample of portable electric spas available on the market and found that the majority of manuals specify that the preferred method of installation is directly on a poured concrete slab. A smaller portion of manuals specify installation on a wooden deck, while a small number of manuals specify other acceptable installation surfaces, such as concrete pavers or crushed gravel. None of the manuals that DOE reviewed specify installing the portable electric spa with insulation between the ground and the spa. Presuming that portable electric spas are installed consistent with the installation manual, DOE's findings suggest that the most representative installation of a portable electric spa is to be installed directly on a concrete slab with no insulation between that surface and the spa.
DOE performed investigative testing to determine the extent to which installation with the optional insulation specified in the chamber floor section of appendix A to ANSI/APSP/ICC-14 2019 impacts energy use in comparison to installation with no insulation. The results of this testing are summarized in Table III.1.
As shown in Table III.1, the amount of insulation and plywood specified in the chamber floor section of appendix A to ANSI/APSP/ICC-14 2019 reduced standby loss by up to 37 percent compared to testing with no insulation. These results demonstrate that the inclusion or exclusion of chamber floor insulation has a significant impact on measured energy use.
To ensure that test results are representative of an average consumer use cycle or period of use, DOE is proposing in section 4.1.2 of appendix GG to specify that the portable electric spa be installed directly on a level concrete floor or slab.
As discussed, none of the installation manuals that DOE reviewed specify installing the spa with insulation between the ground and the spa. Although DOE is not aware of any portable electric spas that include insulation and/or other materials such as plywood as part of the installation
DOE recognizes that certain test facilities may not have concrete floors or slabs within the test area that otherwise would meet the specified test conditions and installation requirements proposed for portable electric spas. For example, some chambers have solid or perforated floors made of steel or aluminum. DOE welcomes information regarding the availability of concrete floors or slabs within test facilities and potential alternatives for testing that would best represent portable electric spa operation to reflect representative consumer use when installed on concrete floors or slabs.
DOE seeks comment on its tentative determination, based on review of portable electric spa user manuals, that the most representative installation of a portable electric spa is to be installed directly on concrete with no insulation between that surface and the spa.
DOE requests comment on its proposal to specify installing the portable electric spa directly on the chamber floor without any insulation between the spa and the floor.
DOE seeks comment on its presumption that a consumer would be likely to install insulation and/or wood if insulation and/or wood were to be included with the portable electric spa and specified by the installation instructions to be installed for use, and that in such cases, testing with the insulation and/or wood provided would produce test results that are representative of consumer use.
DOE requests comment on the availability of concrete floors or slabs within test facilities and on whether any test chamber floor alternatives, such as solid or perforated steel or aluminum floors, would represent portable electric spa operation when installed on concrete floors or slabs.
Section 5.5.6 of ANSI/APSP/ICC-14 2019 specifies that the voltage supplied to the portable electric spa be within 10 percent of the nameplate voltage during testing, but specifies no other requirements for the electrical supply or amperage configuration. The following paragraphs discuss additional considerations regarding voltage supply and amperage configuration relevant to testing portable electric spas.
DOE's market research indicates that most portable electric spas operate at a single voltage (
Similarly, certain portable electric spas on the market allow the consumer to configure the maximum amperage at which the portable electric spa can operate at a particular voltage level. This configurability ensures that the operation of the portable electric spa is compatible with the electrical service of the home. For example, for a home with a 50 ampere (“A”) circuit breaker available, all the features on a particular portable electric spa may be capable of operating at the same time; whereas, for a home with only a 30 A circuit breaker available, the portable electric spa may still operate, albeit with reduced or restricted functionality. Units that provide amperage configurability most commonly operate at 240 V. On such units, changing the maximum amperage corresponds to allowing more or fewer components to operate at the same time (
The choice of voltage and maximum amperage can affect the rate of heating in the portable electric spa and the occurrence of multiple components of the spa (
DOE is proposing in section 4.1.3 of appendix GG a hierarchy to use for configuring the voltage and amperage configuration of the portable electric spa during testing. Specifically, DOE is proposing that if the portable electric spa can be installed or configured with multiple options of voltage, maximum amperage, or both, testing should use the as-shipped configuration. If no configuration is provided in the as-shipped condition, DOE is proposing that testing be conducted using the option specified in the manufacturer's instructions as the recommended configuration for normal consumer use. If no configuration is provided in the as-shipped condition and the manufacturer's instructions do not provide a recommended configuration for normal operation, DOE is proposing that testing be conducted using the maximum voltage specified in the manufacturer's installation instructions and the maximum amperage that the manufacturer's installation instructions specify for use with the maximum voltage.
DOE requests comment on the proposed hierarchy for specifying voltage and maximum amperage for portable electric spas that have multiple options for voltage and/or amperage. DOE requests comment on any cases for which the proposed language would not make clear the voltage and/or maximum amperage to be used during testing.
Section 3 of ANSI/APSP/ICC-14 2019 defines two quantities for the volume of water in a portable electric spa: fill volume and rated volume. “Fill volume” is the amount of water that is required to be in the spa during testing and is defined as the halfway point between the bottom of the skimmer opening and the top of the skimmer opening. In the absence of a wall skimmer, the fill volume is 6 inches (152 mm) below the overflow level of the spa. “Rated volume” is defined as
DOE compared fill volume and rated volume of portable electric spas on the market by reviewing certification records available in the CEC Modernized Appliance Energy Efficiency Database System (“MAEDbS”).
The volume of the water in a portable electric spa has a significant effect on the energy consumption of the spa, such that any significant difference between fill volume and rated volume for particular portable electric spas suggests that the standby loss determined for those models (based on fill volume) may not be representative of the way those models are advertised or used by consumers (presumably, rated volume). Furthermore, lack of tolerance on the fill level specification may result in variation in the fill level that could reduce repeatability and reproducibility of the test.
To ensure that the volume of water in the portable electric spa during the test is representative of consumer use, DOE is proposing three sets of additional provisions in the proposed test procedure. First, DOE is proposing to exclude from incorporation by reference the definitions of “fill volume” and “rated volume” in ANSI/APSP/ICC-14 2019, and to create a new definition of “fill volume” in section 3.5 of appendix GG. DOE proposes to define “fill volume” as the volume of water held by the portable electric spa when it is filled as specified in section 4.1.4 of appendix GG.
Second, DOE proposes to exclude the spa filling instructions in Section 5.5.2 of ANSI/APSP/ICC-14 2019 and define new filling instructions in section 4.1.4 of appendix GG. While the filling instructions in Section 5.5.2 of ANSI/APSP/ICC-14 2019 rely only on the geometry of the spa, with no reference to the manufacturer's instructions, the filling instructions proposed in section 4.1.4 of appendix GG would first indicate to fill the spa according to manufacturer's instructions, and would refer to the geometry of the spa only for cases in which the manufacturer's instructions do not specify a fill level. Specifically, section 4.1.4 of appendix GG would specify filling the spa with water as follows:
(a) If the manufacturer's instructions specify a single fill level, fill to that level with a tolerance of ±0.125 inches.
(b) If the manufacturer's instructions specify a range of fill levels and not a single fill level, fill to the middle of that range with a tolerance of ±0.125 inches.
(c) If the manufacturer's instructions do not specify a fill level or range of fill levels, fill to the halfway point between the bottom of the skimmer opening and the top of the skimmer opening with a tolerance of ±0.125 inches.
(d) If the manufacturer's instructions do not specify a fill level or range of fill levels, and there is no wall skimmer, fill to 6.0 inches ± 0.125 inches below the overflow level of the spa.
By defining the fill level for testing to be the same as that specified in the manufacturer's instructions, if available, DOE has tentatively concluded that the proposed fill level is more likely to be representative of consumer use than the fill level specified by ANSI/APSP/ICC-14 2019.
DOE has also tentatively concluded that DOE's specified fill levels for units without manufacturer's fill level instructions are likely to be representative of consumer use for these units. DOE understands that these fill levels are often the levels used for filling portable electric spas for proper operation of the spa, and the levels are often close to the levels specified in manufacturers' instructions.
In each of these instructions, DOE specifies a tolerance of ±0.125 inches (
DOE recognizes the possibility that it might be difficult to measure the fill level with a tolerance of ±0.125 inches if the landmark used to determine fill level is unsteady or a long way from the water level. DOE also recognizes that fill level can affect the energy use of a spa and that a tighter tolerance might be desired to minimize the impact of the tolerance on measured energy use. Therefore, DOE welcomes information on whether any other tolerances on fill level, such as ±0.0625 inches (
To ensure that the fill volume includes the water in all components of the portable electric spa, DOE is also proposing in section 4.1.4 of appendix GG to follow the manufacturer's instructions for filling the spa with water, connecting and/or priming the pump(s), and starting up the spa. After verifying that the portable electric spa is operating normally and that all water lines are filled, DOE is proposing to power off the spa and adjust the fill level as needed. DOE is proposing to measure the volume of water added to the portable electric spa with a water meter while filling the spa, and to measure any water removed from the spa using a water meter, graduated container, or scale with an accuracy of ±2 percent of the quantity measured. DOE is proposing that the fill volume is the volume of water held by the portable electric spa when the spa is filled as specified in section 4.1.4 of appendix GG.
Finally, DOE is proposing in the newly proposed provisions at 10 CFR 429.66 that all representations of fill volume be within 5 gallons of the mean fill volume measured for the sample of the basic model. As discussed, the data on fill volume and rated volume in MAEDbS indicates that some rated volumes correspond to the fill volume rounded to the nearest multiple of 10. The proposed requirement for representations of fill volume to be within 5 gallons of the measured fill volume would allow manufacturers to continue to represent fill volume as a value rounded to the nearest multiple of 10, because any such rounded value would vary by no more than 5 gallons from the measured value. See section III.E.2 of this NOPR for further discussion of DOE's proposals regarding represented values.
DOE requests comment on the proposals to exclude from incorporation by reference the definitions of “fill volume” and “rated volume” in ANSI/APSP/ICC-14 2019, to define a new term for “fill volume,” and to specify new filling instructions in appendix GG.
DOE requests comment on its proposal to specify a tolerance of ±0.125 inches on the defined fill level.
DOE requests comment on whether any other tolerances on fill level, such as ±0.0625 inches or ±0.25 inches would be more appropriate than ±0.125 inches.
DOE requests comment on its proposal to allow represented values of fill volume to be within 5 gallons of the mean fill volume measured for the sample of the basic model.
Portable electric spas are typically covered when not in active use. The standby loss of a portable electric spa is significantly affected by the presence and thermal properties of a spa cover. Section 5.5.5 of ANSI/APSP/ICC-14 2019 requires that the manufacturer's specified cover be used during the test. Section 3 of ANSI/APSP/ICC-14 2019 defines “cover, specified” as the cover that is provided or specified by the manufacturer. However, ANSI/APSP/ICC-14 2019 does not specify how to conduct testing if the manufacturer does not specify a cover. For such cases, differences in laboratory testing decisions regarding the spa cover to be used for testing could result in significant variation in results between laboratories (
To ensure reproducible and representative test results, DOE is proposing to exclude Section 5.5.5 of ANSI/APSP/ICC-14 2019 and to exclude the definition in ANSI/APSP/ICC-14 2019 for “cover, specified”. DOE is proposing in section 4.1.5 of appendix GG to specify installing the spa cover following the manufacturer's instructions.
Also, as explained in sections III.E.1 and III.E.2 of this NOPR, DOE is proposing in 10 CFR 429.66 that if a basic model is distributed in commerce with multiple covers designated by the spa manufacturer for use with the basic model, a manufacturer must determine all represented values for that basic model based on the cover that results in the highest standby loss, except that the manufacturer may choose to identify specific individual combinations of spa and cover as additional basic models.
Additionally, DOE is proposing to provide instructions for testing if the manufacturer does not specify a particular cover to be used with a portable electric spa. DOE considered specifying that no cover be used for testing in such cases; however, DOE testing indicates that maintaining the required test conditions throughout the duration the test (
DOE considered options for specifying a cover to be used for cases in which no cover is designated by the spa manufacturer. DOE is not aware of any information to suggest what type of cover a consumer would use if the spa manufacturer does not specify a particular cover to be used. In such cases, DOE presumes that some consumers may purchase a high-performing spa cover from a third-party supplier; whereas other consumers may opt to use a low-cost, minimally protective cover that would prevent debris from entering the spa but that would not provide substantial insulative properties (
Given that some consumers may opt to use a low-cost, minimally insulative cover if the spa manufacturer does not specify use of a particular cover, DOE is proposing that if no cover is designated by the spa manufacturer for use with the portable electric spa, the portable electric spa be covered during testing with a material that would be low-cost, widely available, would prevent debris from entering the spa, be durable enough for repeated use, but that would provide no substantive insulative properties. DOE tentatively finds that a material with these properties would be feasible for consumer use as a low-cost spa cover. Specifically, DOE is proposing to specify in section 4.1.5 of appendix GG the following: If no cover is designated by the spa manufacturer for use with the portable electric spa, cover the spa with a single layer of 6 mil thickness (0.006 inches; 0.15 mm) plastic film. Cut the plastic to cover the entire top surface of the spa and extend over each edge of the spa approximately 6 inches below the top surface of the spa. Use fasteners or weights to keep the plastic in place during the test, but do not seal the edges of the plastic to the spa (by using tape, for example).
DOE market research indicates that 6 mil thickness plastic film is widely available at home improvement retailers. In addition, DOE testing indicates that covering a portable electric spa during testing with a thin plastic material, such as the material proposed, would be sufficient to maintain the required ambient air temperature and water temperature test conditions throughout the duration the test.
DOE notes that this proposal to test portable electric spas for which the manufacturer does not designate a particular spa cover is conceptually similar to DOE's testing approach for central air conditioners (“CACs”), which typically consist of both an indoor unit and an outdoor unit. The measured efficiency of a CAC is dependent upon the performance characteristics of both the indoor unit and outdoor unit. For CACs sold as an outdoor unit with no matched indoor unit, the DOE test procedure requires that the outdoor unit be tested with an indoor unit that is representative of the least efficient unit with which it would typically be installed. (
However, DOE also notes that this proposal to test portable electric spas for which the manufacturer does not designate a particular spa cover may not be applicable when the spa manufacturer specifically designates a model of portable electric spa for use without a cover or with “no cover” as one of multiple cover options designated by the spa manufacturer. In both of these cases, testing the spa with a cover made of 6 mil plastic might not be representative of field use. Therefore, in such cases it might be more representative to test the spa without a cover.
DOE requests comment on its proposed requirements for testing a portable electric spa that does not have a cover designated for use by the spa manufacturer.
DOE requests comment on whether manufacturers would ever designate a portable electric spa model to be used without a cover or designate a “no cover” option. If so, DOE requests comment on how such a spa should be tested to determine the highest standby
Section 5.6.3 of ANSI/APSP/ICC-14 2019 requires that ambient air temperature be measured at one point located 12 to 18 inches above the level of the spa cover and a minimum of 8 inches from the wall of the chamber. The temperature probe will be positioned and out of direct airflow from the circulation fan. ANSI/APSP/ICC-14 2019 does not provide any further requirements on the location of the ambient air temperature measurement point, such that it would be possible in a large chamber for the measurement point to be located beyond the immediate proximity of the portable electric spa. This lack of direction presents the possibility that the temperature could be taken at a location in the chamber with an ambient temperature that is different than the ambient temperature immediately around the portable electric spa.
To avoid this potential issue, DOE is proposing further requirements on the horizontal location of the ambient air temperature measurement point. DOE understands that it is common for ambient air temperature to be measured directly above the center of the portable electric spa. Therefore, DOE is proposing in section 4.1.6 of appendix GG that the ambient air temperature measurement point specified in Section 5.6.3 of ANSI/APSP/ICC-14 2019 must be located above the center of the portable electric spa. DOE has tentatively concluded that this proposal will ensure that the ambient air temperature is measured close to the portable electric spa and in the same general location each time, thereby increasing test repeatability, reproducibility, and representativeness.
DOE requests comment on the proposal to require that ambient air temperature be measured above the center of the portable electric spa.
The definition of standby mode in ANSI/APSP/ICC-14 2019 indicates that water temperature settings may be adjusted to meet the test conditions.
For these reasons, DOE has tentatively concluded that water temperature setting adjustments would not be appropriate during the test and that further specification is required to ensure repeatable, reproducible, and representative test results. Therefore, DOE proposes in section 4.2.2 of appendix GG to specify that portable electric spa water temperature settings be adjusted to meet the test requirements, but that spa water temperature settings must not be adjusted between the start of the stabilizing period specified in Section 5.6.1 of ANSI/APSP/ICC-14 2019 and the end of the test period specified in Section 5.6.4.7 of ANSI/APSP/ICC-14 2019.
DOE requests comment on its proposed requirement that water temperature settings must not be adjusted between the start of the stabilizing period and the end of the test period.
The sub-sections within Section 5.6.1 of ANSI/APSP/ICC-14 2019 specify the range of water temperatures that are allowed during the test based on the capabilities of the portable electric spa.
To ensure that the water temperature requirements are interpreted consistently and repeatably, DOE is proposing to specify explicitly in section 4.2.3 of appendix GG that each individual water temperature measurement taken during the stabilization period and test period must meet the applicable water temperature requirements specified in Section 5.6.1 of ANSI/APSP/ICC-14 2019. DOE conducted investigative testing and found that this requirement can be met in typical spa operation.
DOE requests comment on its proposal to state explicitly that each individual water temperature measurement taken during the stabilization period and test period must meet the applicable water temperature requirements.
Section 5.7 of ANSI/APSP/ICC-14 2019 contains calculations for normalized standby power. This includes calculating the measured standby power and normalizing that standby power to a normalized temperature difference between the water in the spa and the ambient air. As discussed in section III.C.3 of this NOPR, DOE is proposing to use the term “standby loss” instead of “normalized standby power.” In addition, as discussed in section III.D.3 of this NOPR, DOE is proposing to specify a representative ambient air temperature of 56 °F. Because these proposals are inconsistent with the calculations defined in Section 5.7 of ANSI/APSP/ICC-14 2019, DOE is proposing to exclude Section 5.7 of ANSI/APSP/ICC-14 2019 from incorporation by reference and to specify a new standby loss calculation in section 4.3 of appendix GG. DOE is proposing for this section to use the term “standby loss” instead of “normalized standby power” and to use normalized temperature differences that are consistent with DOE's proposed representative ambient air temperature of 56 °F.
In determining the normalized temperature differences, DOE also is proposing to use a different approach to calculate the normalized temperature differences than the approach used in ANSI/APSP/ICC-14 2019. In Sections
Therefore, DOE is proposing to define a normalized temperature difference of 46 °F (
DOE requests comment on the proposed standby loss calculations, including the method used to calculate normalized temperature differences based on the midpoint of the allowable temperature ranges. DOE requests comment on its tentative conclusion that normalizing standby loss to the midpoint of the allowable temperature ranges would produce test results that are more representative than normalizing standby loss to the minimum expected temperature difference between the allowable ranges.
For determining the proposed represented values (
In the course of regulating consumer products, DOE has developed the concept of a “basic model” to determine the specific product or equipment configuration(s) to which the regulations would apply. Specifically, in DOE's existing definition of basic model at 10 CFR 430.2, basic model means all units of a given type of covered product (or class thereof) manufactured by one manufacturer that have the same primary energy source and have essentially identical electrical, physical, and functional (or hydraulic) characteristics that affect energy consumption, energy efficiency, water consumption, or water efficiency.
DOE has reviewed this definition of “basic model” and tentatively determined that the general definition is appropriate for portable electric spas. For the purposes of applying the proposed portable electric spa regulations, DOE is proposing to rely on the definition of “basic model” as currently defined at 10 CFR 430.2. Application of the current definition of “basic model” would allow manufacturers of portable electric spas to group similar models within a basic model to minimize testing burden, while ensuring that key variables that differentiate portable electric spa energy performance or utility are maintained as separate basic models. As proposed, manufacturers would be required to test only a representative number of units of a basic model in lieu of testing every individual model they manufacture, and individual models of portable electric spas would be permitted to be grouped under a single basic model so long as all grouped models have the same representative energy performance, which is representative of the unit with the highest standby loss.
For example, characteristics that might distinguish basic models of a portable electric spa might be the amount and location of insulation or reflective material in the spa cabinet, and the configuration of the spa's plumbing, especially including whether the spa uses a dedicated-purpose pump for circulation, such that the standby loss of the spa can be reasonably expected to differ as a result. DOE understands that many available features on portable electric spas, such as varying colors of exterior cabinetry or acrylic shell, do not affect energy usage. Therefore, features such as these would not constitute the basis for establishing a distinct basic model.
Also, as explained in section III.E.2 of this NOPR, DOE is proposing in 10 CFR 429.66 that if a basic model is distributed in commerce with multiple covers designated by the spa manufacturer for use with the basic model, a manufacturer must determine all represented values for that basic model based on the cover that results in the highest standby loss, except that the manufacturer may choose to identify specific individual combinations of spa and cover as additional basic models.
DOE requests comment on the proposed applicability of the definition of “basic model” at 10 CFR 430.2 to portable electric spas.
DOE provides requirements for represented values and sampling plans for all covered products in subpart B to part 429. The purpose of a statistical sampling plan is to provide a method to determine represented values of energy- and non-energy-related metrics for each basic model.
DOE is proposing to create a new section at 10 CFR 429.66 for portable electric spas and to require that, for each basic model, a sample of sufficient size must be randomly selected and tested to ensure that any represented value of standby loss or other measure of energy consumption of a basic model for which customers would favor lower values is greater than or equal to the higher of the following two values:
(1) The mean of the sample, where:
Or,
(2) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
DOE is also proposing in 10 CFR 429.66 that the represented value of standby loss must be a whole number of watts.
In addition to specifying sampling provisions pertaining to representations of standby loss, DOE is proposing that the represented value of fill volume must be a whole number of gallons that is within 5 gallons of the mean of the fill volumes measured for the units in the sample used to determine the represented value of standby loss. As discussed in section III.D.6 of this NOPR, DOE is proposing a tolerance of 5 gallons on the represented value of fill volume to enable manufacturers to make representations of fill volume values
Portable electric spas are often available with more than one model of cover, and the characteristics of the cover can significantly affect measured standby loss. DOE is proposing in 10 CFR 429.66 that if a basic model is distributed in commerce with multiple covers designated by the spa manufacturer for use with the basic model, a manufacturer must determine all represented values for that basic model based on the cover that results in the highest standby loss, except that the manufacturer may choose to identify specific individual combinations of spa and cover as additional basic models. DOE is also proposing that if a basic model is distributed in commerce with no cover designated by the spa manufacturer for use with the basic model, a manufacturer must determine all represented values for that basic model by testing as specified in section 4.1.5.2 of appendix GG to subpart B of part 430.
DOE requests comment on the proposed statistical sampling procedures and representations requirements for portable electric spas.
DOE requests comment on the proposal that represented values be based on testing with the designated cover that results in the highest standby loss; or by testing as specified in section 4.1.5.2 of appendix GG to subpart B of part 430 if there is no designated cover.
Manufacturers of portable electric spas within the scope of the proposed portable electric spa test procedure, if finalized, would be required to use the test procedure proposed in this NOPR when making representations about the energy efficiency or energy use of their products. Specifically, 42 U.S.C. 6293(c) provides that “no manufacturer . . . may make any representation . . . respecting the energy consumption of such product or cost of energy consumed by such product, unless such product has been tested in accordance with such test procedure and such representation fairly discloses the results of such testing.”
If made final, the proposed test procedure would not require manufacturers to test the subject portable electric spas until such time as compliance is required with any future applicable energy conservation standards that are established. However, beginning 180 days after publication of a final rule that adopts a test procedure for portable electric spas, any voluntary representations as to the energy efficiency or energy use of a subject portable electric spa would be required to be based on the DOE test procedure. (42 U.S.C. 6293(c)(2))
In this NOPR, DOE proposes to establish a test procedure for portable electric spas by incorporating by reference the test methods established in ANSI/APSP/ICC-14 2019, “American National Standard for Portable Electric Spa Energy Efficiency,” with certain modifications and additions. This NOPR also contains proposals regarding representation provisions for portable electric spas. The following paragraphs discuss DOE's analysis of testing costs associated with this proposal.
As discussed previously, DOE proposes to incorporate by reference the test method contained in certain applicable Sections of ANSI/APSP/ICC-14 2019 as the basis for the portable electric spas test procedure. DOE also proposes modifications and additions to ANSI/APSP/ICC-14 2019 to ensure repeatability, reproducibility, and representativeness of test results. These proposals are discussed in sections III.D.1 through III.D.11 of this NOPR.
Because DOE's proposed test procedure would largely be consistent with the current industry test method ANSI/APSP/ICC-14 2019, DOE has tentatively determined that the proposal in this NOPR is unlikely to significantly increase burden in comparison to performing testing consistent with ANSI/APSP/ICC-14 2019. In the following paragraphs, DOE estimates the testing costs associated with the proposed test procedure for portable electric spas.
By adopting industry standards, DOE has tentatively determined that the proposals included in this NOPR would establish a DOE test procedure that is reasonably designed to produce test results which reflect energy efficiency and energy use of portable electric spas during a representative average use cycle and that would not be unduly burdensome for manufacturers to conduct. DOE is presenting its estimates for the costs associated with testing products consistent with the requirements of the proposed test procedure, as would be required to certify compliance with any future energy conservation standard.
DOE estimates the per-test cost for third-party laboratory testing of portable electric spas according to the current industry consensus test procedure ANSI/APSP/ICC-14 2019 to be $5,000 for standard and inflatable spas, $9,000 for exercise spas, and $11,000 for combination spas. DOE estimates the per-test cost for third-party lab testing according to the proposed DOE test procedure to be $5,150 for standard and inflatable spas, $9,150 for exercise spas, and $11,150 for combination spas. This slight increase between the estimates for ANSI/APSP/ICC-14 2019 and the proposed DOE test procedure is due to the potential that some testing labs may be required to install conditioning equipment to comply with the proposed lower ambient temperature requirement. DOE estimates the cost of such equipment to be approximately $150.
DOE notes that the testing burden per manufacturer will vary depending on current testing practices. ANSI/APSP/ICC-14 2019 is the generally accepted industry test procedure. As such, many manufacturers are already testing to ANSI/APSP/ICC-14 2019 for certification in California and other regulated markets.
DOE requests comment on its estimates of the costs associated with performing testing according to the test procedure proposals in this NOPR. DOE requests comment on its tentative determination that the proposed DOE test procedure, if finalized, would not be unduly burdensome for manufacturers to conduct.
DOE's established practice is to adopt relevant industry standards as DOE test procedures unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that product during a representative average use cycle or period of use. Section 8(c) of appendix A of 10 CFR part 430, subpart C. In cases where the industry standard does not meet EPCA's statutory criteria for test procedures, DOE will make modifications through the rulemaking process to these standards for the DOE test procedure.
The industry standard DOE proposes to incorporate by reference via
DOE requests comments on the benefits and burdens of the proposed updates and additions to the industry standard referenced in the test procedure for portable electric spas.
If DOE amends a test procedure, EPCA prescribes that all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with that amended test procedure, beginning 180 days after publication of such a test procedure final rule in the
If DOE were to publish a new test procedure, EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. (
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this proposed regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this proposed action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
The following sections detail DOE's IRFA for this test procedure rulemaking.
Portable electric spas are factory-built hot tubs or spas that are intended for the immersion of people in heated, temperature-controlled water that is circulated in a closed system. Currently, portable electric spas are not subject to DOE test procedures or energy conservation standards. DOE is publishing this NOPR in accordance with the statutory authority in EPCA. In this NOPR, DOE is proposing to establish a new test procedure for portable electric spas.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. Specifically, EPCA provides that DOE may, in accordance with certain requirements, prescribe test procedures for any consumer product classified as a covered product under section 6292(b). (42 U.S.C. 6293(b)(1)(B)) EPCA requires that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
DOE uses the Small Business Administration (“SBA”) small business size standards to determine whether manufacturers qualify as “small businesses,” which are listed by the North American Industry Classification
Portable electric spa manufacturers, who produce the products covered by this rule, are classified under NAICS code 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing.” In 13 CFR 121.201, the SBA sets a threshold of 500 employees or fewer for an entity to be considered as a small business for this category. This employee threshold includes all employees in a business's parent company and any other subsidiaries.
DOE reviewed the test procedure proposed in this NOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The Department conducted a focused inquiry into small business manufacturers of the products covered by this rulemaking. DOE used publicly available information to identify potential small businesses that manufacture portable electric spas domestically. DOE identified manufacturers using MAEDbS and web searches. Additionally, DOE used publicly-available information and subscription-based market research tools (
In this NOPR, DOE proposes to establish a test procedure for portable electric spas in a new appendix GG to subpart B of part 430. DOE proposes to incorporate by reference the test methods established in ANSI/APSP/ICC-14 2019, “American National Standard for Portable Electric Spa Energy Efficiency,” with certain exceptions and additions. The proposed test method produces a measure (“standby loss”) of the energy consumption of portable electric spas that represents the average power consumed by the spa, normalized to a standard temperature difference between the ambient air and the water in the spa, while the cover is on and the product is operating in its default operation mode.
DOE's proposed test procedure would be largely consistent with the current industry consensus test method ANSI/APSP/ICC-14 2019. As such DOE anticipates the proposal in this NOPR to be unlikely to significantly increase burden given that DOE is referencing the prevailing industry test procedure. Furthermore, compliance with the proposed test procedure would not be required until compliance is required with any energy conservation standards DOE establishes for portable electric spas or if a manufacturer chooses to make voluntary representations.
DOE recognizes that energy conservation standards related to portable electric spas may be proposed or promulgated in the future and manufacturers would then be required to test all covered products in accordance with the proposed test procedure once compliance with any standard is required. Therefore, DOE is presenting the estimated maximum costs associated with testing consistent with the requirements of the test procedure, as would be required to comply with any future energy conservation standards for portable electric spas.
DOE understands that most portable electric spa manufacturers elect to test units at a third-party testing facility. DOE estimates that the per basic model test costs for third-party lab testing to be $5,150 for standard and inflatable spas, $9,150 for exercise spas, and $11,150 for combination spas. Also, DOE estimates the impacts based on estimated basic model counts and company revenue. Table IV.1 summarizes DOE's estimates for the identified small businesses. On average, testing costs represent less than 1 percent of annual revenue for a typical small business.
DOE requests comment on the number of small businesses DOE identified. DOE also requests comment on the potential cost estimates for each small business identified.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the proposed rule being considered.
The discussion in the previous section analyzes impacts on small
The Department has tentatively determined that there are no better alternatives than the test procedure proposed in this NOPR, in terms of both meeting the agency's objectives and reducing burden. Additionally, manufacturers subject to DOE's test procedures may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 430, subpart E, and 10 CFR part 1003 for additional details.
Although no energy conservation standards have been established for portable electric spas as of the publication of this NOPR, manufacturers of portable electric spas would need to certify to DOE that their products comply with any potential future applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including portable electric spas. (
DOE is not proposing certification or reporting requirements for portable electric spas in this NOPR. Instead, DOE may consider proposals to establish certification requirements and reporting for portable electric spas under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this NOPR, DOE proposes a test procedure that it expects will be used to develop and implement future energy conservation standards for portable electric spas. DOE has determined that this proposed rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State,
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this proposed regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
The proposed regulatory action to establish a test procedure for measuring the energy efficiency of portable electric spas is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The proposed test procedure for portable electric spas would incorporate testing methods contained in certain sections of the following commercial standard: Pool & Hot Tub Alliance ANSI/APSP/ICC-14 2019, “American National Standard for Portable Electric Spa Energy Efficiency”. DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
In this NOPR, DOE proposes to incorporate by reference ANSI/APSP/ICC-14 2019. The proposed incorporated test standard measures standby loss as the average power required to maintain the spa's water at a ready-to-use temperature for 72 hours, while the spa sits covered in a controlled-temperature environment. Specifically, this NOPR proposes to incorporate significant portions of section 3, “Definitions”, section 5, “Test Methods”, and appendix A, “Minimum Chamber Requirements”.
Copies of ANSI/APSP/ICC-14 2019 may be purchased from the Pool & Hot Tub Alliance, 2111 Eisenhower Avenue, Suite 500, Alexandria, VA 22314 (
The time and date of the webinar meeting are listed in the
Any person who has an interest in the topics addressed in this proposed rule, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit to
DOE will designate a DOE official to preside at the webinar/public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar/public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar/public meeting and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE will present a general overview of the topics addressed in this rulemaking, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the webinar/public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar/public meeting.
A transcript of the webinar will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
(1) DOE requests comment on its proposal for the scope of the test procedure to include all products that meet the definition of portable electric spa. DOE requests comment on whether any additional products should be included within the scope of the DOE test procedure. DOE requests comment on whether any products that meet the definition of portable electric spa should be excluded from the scope of the DOE test procedure, and, if so, on what basis.
(2) DOE requests comment on whether the definitions for the categories of portable spas proposed in section 3 of appendix GG (
(3) DOE requests comment on whether there are portable electric spas used for special purposes, such as those operated for medical treatment or physical therapy, that should be excluded from the scope of the DOE test procedure or tested in a different manner. If so, DOE requests comment on the method to determine the spas to exclude or test differently.
(4) DOE requests comment on its tentative determination not to propose a minimum or maximum size to limit the scope of the DOE test procedure.
(5) DOE requests comment on whether it is necessary to measure standby mode or off mode energy consumption in the DOE test procedure.
(6) DOE requests comment on its proposal to use standby loss, equivalent to the normalized standby power as defined by ANSI/APSP/ICC-14 2019, as the performance-based metric for representing the energy use of portable electric spas.
(7) DOE requests comment on its proposed definition for “standby loss” in section 3.9 of appendix GG.
(8) DOE requests comment and data on the representative operation of spas when in use with the cover removed, including typical frequency and duration of use, operation of jets or other features, and number of users. DOE also requests comment on how usage varies across spa types.
(9) DOE requests comment on any test methods that measure the operation of spas when in use with the cover removed.
(10) DOE requests comment on its proposal to adopt specific sections of ANSI/APSP/ICC-14 2019 in DOE's proposed test procedure for portable electric spas.
(11) DOE requests comment on whether any of the sections of ANSI/APSP/ICC-14 2019 that DOE is proposing to exclude from the proposed DOE test procedure should be included in the DOE test procedure.
(12) DOE requests comment on its determination that, rounded to the nearest degree, 56 °F is a nationally representative ambient air temperature applicable to testing portable electric spas.
(13) DOE requests comment on its proposal to specify an ambient air temperature of 56.0 ± 3.0 °F during testing. If commenters recommend a different ambient temperature, DOE requests data demonstrating the representativeness of that ambient temperature.
(14) DOE requests comment on its tentative determination that the specifications regarding chamber internal dimensions, air flow, and chamber insulation in appendix A to ANSI/APSP/ICC-14 2019 are appropriate for testing portable electric spas and would produce test results that reflect representative consumer use and would not be unduly burdensome to require for testing.
(15) DOE requests comment on the proposed chamber requirements in section 4.1.1 of appendix GG and whether any alternate or additional requirements are needed.
(16) DOE seeks comment on its tentative determination, based on review of portable electric spa user manuals, that the most representative installation of a portable electric spa is to be installed directly on concrete with no insulation between that surface and the spa.
(17) DOE requests comment on its proposal to specify installing the portable electric spa directly on the chamber floor without any insulation between the spa and the floor.
(18) DOE seeks comment on its presumption that a consumer would be likely to install insulation and/or wood if insulation and/or wood were to be included with the portable electric spa and specified by the installation instructions to be installed for use, and that in such cases, testing with the insulation and/or wood provided would produce test results that are representative of consumer use.
(19) DOE requests comment on the availability of concrete floors or slabs within test facilities and on whether any test chamber floor alternatives, such as
(20) DOE requests comment on the proposed hierarchy for specifying voltage and maximum amperage for portable electric spas that have multiple options for voltage and/or amperage. DOE requests comment on any cases for which the proposed language would not make clear the voltage and/or maximum amperage to be used during testing.
(21) DOE requests comment on the proposals to exclude from incorporation by reference the definitions of “fill volume” and “rated volume” in ANSI/APSP/ICC-14 2019, to define a new term for “fill volume,” and to specify new filling instructions in appendix GG.
(22) DOE requests comment on its proposal to specify a tolerance of ±0.125 inches on the defined fill level.
(23) DOE requests comment on whether any other tolerances on fill level, such as ±0.0625 inches or ±0.25 inches would be more appropriate than ±0.125 inches.
(24) DOE requests comment on its proposal to allow represented values of fill volume to be within 5 gallons of the mean fill volume measured for the sample of the basic model.
(25) DOE requests comment on its proposed requirements for testing a portable electric spa that does not have a cover designated for use by the spa manufacturer.
(26) DOE requests comment on whether manufacturers would ever designate a portable electric spa model to be used without a cover, or designate a “no cover” option. If so, DOE requests comment on how such a spa should be tested to determine the highest standby loss (
(27) DOE requests comment on the proposal to require that ambient air temperature be measured above the center of the portable electric spa.
(28) DOE requests comment on its proposed requirement that water temperature settings must not be adjusted between the start of the stabilizing period and the end of the test period.
(29) DOE requests comment on its proposal to state explicitly that each individual water temperature measurement taken during the stabilization period and test period must meet the applicable water temperature requirements.
(30) DOE requests comment on the proposed standby loss calculations, including the method used to calculate normalized temperature differences based on the midpoint of the allowable temperature ranges. DOE requests comment on its assertion that normalizing standby loss to the midpoint of the allowable temperature ranges would produce test results that are more representative than normalizing standby loss to the minimum expected temperature difference between the allowable ranges.
(31) DOE requests comment on the proposed applicability of the definition of “basic model” at 10 CFR 430.2 to portable electric spas.
(32) DOE requests comment on the proposed statistical sampling procedures and representations requirements for portable electric spas.
(33) DOE requests comment on the proposal that represented values be based on testing with the designated cover that results in the highest standby loss; or by testing as specified in section 4.1.5.2 of appendix GG to subpart B of part 430 if there is no designated cover.
(34) DOE requests comment on its estimates of the costs associated with performing testing according to the test procedure proposals in this NOPR. DOE requests comment on its tentative determination that the proposed DOE test procedure, if finalized, would not be unduly burdensome for manufacturers to conduct.
(35) DOE requests comments on the benefits and burdens of the proposed updates and additions to industry standards referenced in the test procedure for portable electric spas.
(36) DOE requests comment on the number of small businesses DOE identified. DOE also requests comment on the potential cost estimates for each small business identified.
(37) Additionally, DOE welcomes comments on other issues relevant to the conduct of this rulemaking that may not specifically be identified in this document.
The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
This document of the Department of Energy was signed on October 3, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE is proposing to amend parts 429 and 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(a)
(1)
(i) If a basic model is distributed in commerce with multiple covers designated by the spa manufacturer for use with the basic model, a manufacturer must determine all represented values for that basic model based on the cover that results in the highest standby loss, except that the manufacturer may choose to identify
(ii) If a basic model is distributed in commerce with no cover designated by the spa manufacturer for use with the basic model, a manufacturer must determine all represented values for that basic model by testing as specified in section 4.1.5.2 of appendix GG to subpart B of part 430.
(2)
(3)
(i) The mean of the sample, where:
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(4)
(5)
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
The addition reads as follows:
(v)
(1) ANSI/APSP/ICC-14 2019 (“ANSI/APSP/ICC-14 2019”), American National Standard for Portable Electric Spa Energy Efficiency, IBR approved for appendix GG to subpart B of this part.
(2) [Reserved]
(hh)
(1) Measure the standby loss in watts and the fill volume in gallons of a portable electric spa, in accordance with appendix GG to this subpart.
(2) [Reserved].
Beginning [
1. Incorporation by reference.
DOE incorporated by reference in § 430.3, the entire standard for ANSI/APSP/ICC-14 2019. However, only enumerated provisions of ANSI/APSP/ICC-14 2019, as listed in this section 1 are required. To the extent there is a conflict between the terms or provisions of a referenced industry standard and the CFR, the CFR provisions control. Non-enumerated provisions of ANSI/APSP/ICC-14 2019 are specifically excluded.
1.1 ANSI/APSP/ICC-14 2019:
(a) Section 3—Definitions (excluding the definitions for
(b) Section 5—Test Method (excluding Sections 5.1, 5.2, 5.5.2, 5.5.4, 5.5.5, and 5.7), as specified in section 4 of this appendix;
(c) Appendix A—Minimum Chamber Requirements (excluding section titled
1.2 Reserved.
This appendix provides the test procedure for measuring the standby loss in watts and the fill volume in gallons of portable electric spas.
3.1. Section 3, Definitions, of ANSI/APSP/ICC-14 2019 applies to this test procedure. In case of conflicting terms between ANSI/APSP/ICC-14 2019 and DOE's definitions in this appendix or in § 430.2, DOE's definitions take priority.
3.2. Combination spa means a portable electric spa with two separate and distinct reservoirs, where—
(a) One reservoir is an exercise spa;
(b) The second reservoir is a standard spa; and
(c) Each reservoir has an independent water temperature setting control.
3.3. Exercise spa means a variant of a portable electric spa in which the design and construction includes specific features and equipment to produce a water flow intended to allow recreational physical activity including, but not limited to, swimming in place. An exercise spa is also known as a swim spa.
3.4. Exercise spa portion means the reservoir of a combination spa that is an exercise spa.
3.5. Fill volume means the volume of water held by the portable electric spa when it is filled as specified in section 4.1.4 of this appendix.
3.6. Inflatable spa means a portable electric spa where the structure is collapsible and is designed to be filled with air to form the body of the spa.
3.7. Standard spa means a portable electric spa that is not an inflatable spa, an exercise spa, or the exercise spa portion of a combination spa.
3.8. Standard spa portion means the reservoir of a combination spa that is a standard spa.
3.9. Standby loss means the mean normalized power required to operate the portable electric spa in default operation mode with the cover on, as calculated in section 4.3 of this appendix.
Determine the standby loss in watts and fill volume in gallons for portable electric spas in accordance with Section 5,
Install the portable electric spa in a chamber satisfying the requirements specified for
Install the portable electric spa directly on a level concrete floor or slab.
If insulation and/or plywood is shipped with the spa, and the manufacturer's instructions specify that insulation and/or plywood be installed under the spa for normal use, install the minimum amount of insulation and/or plywood between the floor and the spa that is specified by the manufacturer's installation instructions.
If the portable electric spa can be installed or configured with multiple options of voltage, maximum amperage, or both, use the option specified in the following paragraphs.
(a) Use the as-shipped configuration, if such a configuration is provided.
(b) If no configuration is provided in the as-shipped condition, use the option specified in the manufacturer's instructions as the recommended configuration for normal consumer use.
(c) If no configuration is provided in the as-shipped condition and the manufacturer's instructions do not provide a recommended configuration for normal consumer use, use the maximum voltage specified in the manufacturer's installation instructions and maximum amperage that the manufacturer's installation instructions specify for use with the maximum voltage.
Follow the manufacturer's instructions for filling the portable electric spa with water, connecting and/or priming the pump(s), and starting up the spa. After verifying that the spa is operating normally and that all water lines are filled, power off the spa and adjust the fill level as needed to meet the following specifications before starting the test.
If the manufacturer's instructions specify a single fill level, fill to that level with a tolerance of ±0.125 inches.
If the manufacturer's instructions specify a range of fill levels and not a single fill level, fill to the middle of that range with a tolerance of ±0.125 inches.
If the manufacturer's instructions do not specify a fill level or range of fill levels, fill to the halfway point between the bottom of the skimmer opening and the top of the skimmer opening with a tolerance of ±0.125 inches.
If the manufacturer's instructions do not specify a fill level or range of fill levels, and there is no wall skimmer, fill to 6.0 inches ±0.125 inches below the overflow level of the spa.
Measure the volume of water added to the spa with a water meter while filling the spa. Measure any water removed from the spa using a water meter, graduated container, or scale, each with an accuracy of ±2 percent of the quantity measured. The fill volume is the volume of water held by the spa when the spa is filled as specified above.
Install the spa cover following the manufacturer's instructions.
If no cover is designated by the spa manufacturer for use with the spa, cover the portable electric spa with a single layer of 6 mil thickness (0.006 inches; 0.15 mm) plastic film. Cut the plastic to cover the entire top surface of the spa and extend over the edge of the spa approximately 6 inches below the top surface of the spa. Use fasteners or weights to keep the plastic in place during the test, but do not seal the edges of the plastic to the spa (by using tape, for example).
The ambient air temperature measurement point specified in Section 5.6.3 of ANSI/APSP/ICC-14 2019 must be located above the center of the spa.
Maintain the ambient air temperature at 56.0 ± 3.0 °F for the duration of the test. This requirement applies to each individual ambient air temperature measurement taken for the duration of the stabilization period and test period.
Adjust the spa water temperature settings to meet the applicable temperature requirements in Section 5.6.1 of ANSI/APSP/ICC-14 2019. The spa water temperature settings must not be adjusted between the start of the stabilizing period specified in Section 5.6.1 of ANSI/APSP/ICC-14 2019 and the end of the test period specified in Section 5.6.4.7 of ANSI/APSP/ICC-14 2019.
Each individual water temperature measurement taken during the stabilization period and test period must meet the applicable water temperature requirements specified in Section 5.6.1 of ANSI/APSP/ICC-14 2019.
Calculate standby loss in watts by calculating the measured standby loss using Equation 1 of this appendix, calculating the measured temperature difference using Equation 2 of this appendix, and normalizing the standby loss using Equation 3 of this appendix. Use the standby loss calculated in Equation 3 as the standby loss value for the test.
46.0 °F for all inflatable spas, standard spas, standard spa portions of a combination spa, exercise spas, and exercise spa portions of a combination spa tested to a minimum water temperature of 100 °F; or
31.0 °F for all exercise spas or exercise spa portions of a combination spa tested to a minimum water temperature of 85 °F.