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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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U.S. Citizenship and Immigration Services, Department of Homeland Security; Executive Office for Immigration Review, Department of Justice.
Interim final rule with request for comments.
On December 23, 2020, the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively, “the Departments”) published a final rule (“Security Bars rule”), to clarify that the “danger to the security of the United States” standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes. This rule would have made a noncitizen ineligible for asylum if, among other things, the noncitizen was physically present in a country in which a communicable disease was prevalent or epidemic, and the Secretary of Homeland Security and the Attorney General determined that the physical presence in the United States of noncitizens coming from that country would cause a danger to the public health. That rule was scheduled to take effect on January 22, 2021, but, as of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. The Departments subsequently further delayed the rule's effective date to December 31, 2021, and most recently to December 31, 2022. In this rule, the Departments are further extending the delay of the effective date of the Security Bars rule until December 31, 2024. The Departments are soliciting comments both on the delay until December 31, 2024, and whether the effective date of the Security Bars rule should be delayed beyond that date.
You may submit comments on this rule, identified by DHS Docket No. USCIS 2020-0013, through the Federal eRulemaking Portal:
Interested persons are invited to submit comments on this action to further delay the effective date of the Security Bars rule by submitting relevant written data, views, or arguments. To provide the most assistance to the Departments, comments should reference a specific portion of the rule; explain the reason for any recommendation; and include data, information, or authority that supports the recommended course of action. Comments must be submitted in English, or an English translation must be provided. Comments submitted in a manner other than those listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the rule and may not receive a response from the Departments.
On December 23, 2020, the Departments published the Security Bars rule to amend existing regulations to clarify that in certain circumstances there are “reasonable grounds for regarding [a noncitizen]
On January 20, 2021, the White House Chief of Staff issued a memorandum asking agencies to consider delaying, consistent with applicable law, the effective dates of any rules that had been published and had not yet gone into effect for the purpose of allowing the President's appointees and designees to review questions of fact, law, and policy raised by those regulations.
As stated in the March 2021 Delay IFR, the Departments had good cause to further delay the Security Bars rule's effective date without advance notice and comment because implementation of the Security Bars rule was infeasible due to a preliminary injunction against a related rule.
The Security Bars rule relies upon the regulatory framework that was established in the Global Asylum final rule in applying bars to asylum eligibility and withholding of removal during credible fear screenings for noncitizens in the expedited removal process.
On July 9, 2020, the Departments published a Notice of Proposed Rulemaking for the Security Bars rule (“2020 Security Bars NPRM”), which proposed regulatory text to apply the security bars during credible fear screenings.
On December 11, 2020, while the Departments were reviewing the comments submitted in response to the 2020 Security Bars NPRM, the Global Asylum final rule was published.
On December 23, 2020, the Security Bars rule was published. In that final rule, the Departments revised the text from the 2020 Security Bars NPRM to explicitly rely on the intervening changes made by the Global Asylum final rule.
The Security Bars rule, if it were to become effective as published, would bar two broad categories of noncitizens who “pose a danger to the security of the United States” from eligibility for asylum, statutory withholding of removal, and withholding of removal under regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)
As a result of the interplay between the two rules, implementation of the Security Bars rule would violate the injunction against the application, implementation, or enforcement of the Global Asylum final rule and related policies or procedures. Effective implementation of the Security Bars rule relies on the application of the asylum and withholding of removal bars to eligibility at the credible fear screening stage, as established by the Global Asylum final rule.
On March 29, 2022, the Departments published an interim final rule titled Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers (“Asylum Processing IFR”).
The Asylum Processing IFR also amended certain regulations modified in part by the Security Bars rule to return to the regulatory framework governing credible fear screening standards and, with limited exceptions, applicability of mandatory bars at the credible fear screening stage that had been in place before the Global Asylum final rule was promulgated.
If the Security Bars rule were to become effective as published, then, when combined with the changes made by the Asylum Processing IFR to the regulations governing the credible fear screening framework and standards, the result would be to create confusing and nonsensical regulatory text. The Asylum
Further, if the Security Bars rule were to become effective as published, the regulations would not coherently interrelate when viewed individually or as a whole, which would create substantial confusion and disorder in the credible fear screening process. The intervening Asylum Processing IFR has made significant changes to the regulations governing the credible fear screening framework and standards, and because these changes are incompatible with applying the Security Bars rule according to its terms, these intervening regulatory changes further justify delaying the effective date of the Security Bars rule.
Accordingly, the Departments are further delaying the effective date of the Security Bars rule until December 31, 2024, due to the aforementioned litigation and the intervening Asylum Processing IFR. The Departments believe that a delay of two years, rather than a shorter delay, is appropriate. If the injunction against implementation of the Global Asylum final rule were lifted, the Departments would need to consider how the regulatory changes that the Asylum Processing IFR made to the credible fear screening framework and standards impact the regulatory text of the Security Bars rule. Given the numerous procedural inconsistencies between the Asylum Processing IFR and the Security Bars rule, as discussed above, the Departments believe that determining how to feasibly apply both rules (or whether such application is feasible at all) would require substantial time. Also, as discussed below, the Departments are planning to issue a notice of proposed rulemaking to modify or rescind the Security Bars rule in the near future. The Departments would need to consider whether attempting to apply the Security Bars rule at all would be consistent with any policy considerations raised by that forthcoming NPRM to modify or rescind the Security Bars rule.
The Departments are reconsidering the Security Bars rule in light of the Administration's policies of ensuring the safe and orderly reception and processing of asylum seekers, consistent with public health and safety, strengthening the asylum system, and removing barriers that impede access to immigration benefits, with the additional context of the complex relationship between the Global Asylum final rule and the Security Bars rule and the court's injunction in
Accordingly, the Departments are further delaying the effective date of the Security Bars rule until December 31, 2024. The Departments believe that, rather than a one-year delay, as they issued in December of 2021, a two-year delay of the effective date will better ensure that there is sufficient time to complete notice-and-comment rulemaking to modify or rescind the Security Bars final rule, even in the event that circumstances require shifting departmental priorities and resources. The Departments believe that a two-year delay will allow sufficient time for the Departments to issue the forthcoming Security Bars NPRM, give careful and meaningful consideration to comments received on the forthcoming Security Bars NPRM, and issue a final rule.
In the March 2021 Delay IFR, the Departments explained that they were considering amending or rescinding the Security Bars rule and sought public comments on whether the Security Bars rule should be revised or revoked and information on alternative approaches that may achieve the best public health outcome consistent with the Administration's immigration policy goals.
To the extent the comments received in response to the March 2021 Delay IFR and the December 2021 Delay IFR address the further delay of the Security Bars rule, the Departments have considered those comments and have determined that a two-year further delay is most appropriate. Several commenters, as noted, opposed delay, but the Departments have concluded that a further delay of at least some length is necessary to ensure the Departments are not required to try to apply both the Asylum Processing IFR and the Security Bars rule without sufficient time to consider the many inconsistencies between those rules. Another commenter, as noted, suggested an indefinite delay, but the Departments believe an indefinite delay is unnecessary at this time because the Departments' forthcoming Security Bars NPRM will be completed at some point in the near future, and, once that rulemaking process is finalized, that rulemaking could obviate the need for an indefinite delay by modifying or rescinding the Security Bars rule. Finally, the remaining commenters who mentioned the possibility of further delay did not cite any specific reasons for a delay of a particular length, and the Departments have concluded that two years is an appropriate duration. The Departments acknowledge the desire of some commenters to rescind the Security Bars rule without further delaying its effective date. However, as discussed in this rule, the Departments intend to publish the forthcoming Security Bars NPRM in the near future to address the issue of possible modification or rescission. The Departments note that thousands of comments were received in response to the 2020 Security Bars NPRM. The Departments anticipate that they may similarly receive a substantial volume of comments in response to the forthcoming Security Bars NPRM. They accordingly believe it is prudent to delay the Security Bars rule's effective date for two years to ensure sufficient time to carefully review, consider, and respond to comments in promulgating a final rule—especially in light of the Departments' potentially competing rulemaking priorities—and avoid the need for additional IFRs to further delay the Security Bars rule's effective date before the anticipated final rule can become effective.
The Departments recognize that the COVID-19 public health emergency is highly dynamic and continues to pose health and safety risks for noncitizens held in congregate settings, particularly at holding and detention facilities; for agency personnel; and for the public.
The Departments continue to welcome data, views, and information regarding the effective date of the Security Bars rule. The Departments also are soliciting comments on whether the effective date should be delayed beyond December 31, 2024. The Departments note that comments addressing whether the Security Bars rule should be modified or rescinded should be submitted in response to the forthcoming Security Bars NPRM, and not in response to this interim final rule.
Under the Administrative Procedure Act (“APA”), agencies must generally provide “notice of proposed rule making” in the
Further, even if the Departments had not fulfilled the notice-and-comment requirements of the APA, agencies are not required to engage in pre-promulgation notice and comment under 5 U.S.C. 553(b) and (c) when an agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). Consistent with the March 2021 Delay IFR and the December 2021 Delay IFR, the Departments have determined that the good cause exception applies to this rule because implementation of the Security Bars rule has not been—and continues to not be—feasible due to a preliminary injunction against a related rule. Furthermore, as discussed above, the implementation of the Asylum Processing IFR also impacts the feasibility of the Security Bars rule. The Security Bars rule's reliance upon and interplay with the Global Asylum final rule, as explained above, mean that implementation of the Security Bars rule would risk violating the
Executive Orders 12866 and 13563 direct agencies to assess the costs, benefits, and transfers of available 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, reducing costs, harmonizing rules, and promoting flexibility. Pursuant to Executive Order 12866, the Office of Information and Regulatory Affairs of the Office of Management and Budget determined that this rule is “significant” under Executive Order 12866 and has reviewed this regulation.
The Departments have reviewed this rule in accordance with the Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 (1980), as amended (codified at 5 U.S.C. 601
This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48;
This rule is not a major rule as defined by section 804 of the legislation commonly known as the Congressional Review Act,
This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Departments believe that this rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988.
This rule does not create new, or revisions to existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.
This rule does not have “[T]ribal implications” because it does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Accordingly, Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) requires no further agency action or analysis.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for certain Bell Textron Canada Limited Model 407 helicopters. This AD was prompted by
This AD becomes effective January 12, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 12, 2023.
The FAA must receive comments on this AD by February 13, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For Transport Canada material that is incorporated by reference in this final rule, contact Transport Canada, Transport Canada National Aircraft Certification, 159 Cleopatra Drive, Nepean, Ontario, K1A 0N5, CANADA; telephone 888-663-3639; email
• You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-68, dated December 15, 2022 (Transport Canada AD CF-2022-68), following issuance of National Transportation Safety Board (NTSB) Aviation Accident Preliminary Report Number ANC22FA041, to correct an unsafe condition for certain serial-numbered Bell Textron Canada Limited Model 407 helicopters.
This AD was prompted by an accident. The FAA is issuing this AD to address failure of the tailboom attachment hardware. See Transport Canada AD CF-2022-68 for additional background information.
Transport Canada AD CF-2022-68 requires checking (inspecting) the torque on the tailboom attachment nuts and depending on the results, replacing parts with new parts and stabilizing the torque. Transport Canada AD CF-2022-68 also requires a detailed visual inspection of the existing sealant application of the aft fuselage attachment fittings and depending on the results, removing the sealant, accomplishing a detailed visual inspection of the tailboom attachment structure (fittings, aft frames, aft fuselage bulkhead, aft section of the canted web, tailboom canted bulkhead, and upper and lower tailboom longerons), repair, and reapplying sealant. If the detailed visual inspection of the tailboom attachment structure was not required as a result of the existing sealant application inspection, Transport Canada AD CF-2022-68 also requires accomplishing the detailed visual inspection of the tailboom attachment structure and depending on the results, repair. Transport Canada AD CF-2022-68 prohibits installing a tailboom until inspection of the security of the shims on the forward face of the tailboom bulkhead and elongation of the four bolt holes in the tailboom and fuselage fittings, and any repair, is accomplished. Lastly, Transport Canada AD CF-2022-68 requires reporting information to Bell.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA also reviewed Bell Alert Service Bulletin 407-22-128, dated December 8, 2022. This service information specifies procedures for checking (inspecting) the torque of the aft fuselage attachment nuts and depending on the results, replacing parts with new parts, retaining the removed parts for further investigation by Bell, stabilizing the torque, applying corrosion preventive compound, and recording information. This service information also specifies, using a powerful light and mirror, inspecting the existing sealant application of the aft fuselage attachment fittings and depending on the results, removing the sealant, accomplishing a detailed visual inspection of the tailboom attachment structure (fittings, the aft frames, aft fuselage bulkhead, aft section of the canted web, the tailboom canted bulkhead, and upper and lower longerons), repair, reapplying sealant, and recording information. For tailbooms that are not installed on a helicopter, this service information specifies procedures for ensuring that the four shims are securely bonded in position on the forward face of the tailboom bulkhead, examining the four bolt holes in the tailboom and fuselage fittings for elongation, discarding certain removed parts, examining certain other parts, replacing parts, and recording information. Lastly, this service information specifies procedures for reporting the previously recorded information to Bell.
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to
This AD requires accomplishing the actions specified in Transport Canada AD CF-2022-68, described previously, as IBRed, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the Transport Canada AD.”
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, Transport Canada AD CF-2022-68 is IBRed in this FAA final rule. This AD, therefore, requires compliance with Transport Canada AD CF-2022-68 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in Transport Canada AD CF-2022-68 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Corrective Actions” in Transport Canada AD CF-2022-68. Service information referenced in Transport Canada AD CF-2022-68 for compliance will be available at
Transport Canada AD CF-2022-68 requires torque checks, whereas this AD requires torque inspections because those actions must be accomplished by a mechanic that meets the requirements of 14 CFR part 65 subpart D. Transport Canada AD CF-2022-68 requires retaining removed parts for further investigation by Bell, whereas this AD does not include that requirement. However, operators may choose to retain the parts for further investigation by Bell as this AD does not prohibit an operator from doing so. Transport Canada AD CF-2022-68 does not specify the compliance time to accomplish the repetitive (stabilization) torque checks (inspections) in its AD, whereas this AD does. Transport Canada AD CF-2022-68 requires contacting Bell Product Support Engineering for a repair or instructions to rectify any defect, whereas this AD requires a repair done in accordance with a certain approval. Lastly, Transport Canada AD CF-2022-68 specifies to report inspection results within 30 days, whereas this AD requires reporting inspection results within 10 days instead.
The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the tailboom attachment hardware was involved in an accident where the tailboom attachment hardware failed during flight, resulting in the tailboom separating from the helicopter and loss of control of the helicopter. Failure of the tailboom attachment hardware could occur during any phase of flight without any previous indication. As the FAA has no information pertaining to the extent of this condition of the tailboom attachment hardware that may currently exist in helicopters or how quickly the condition may propagate to failure, the compliance time to complete the required inspections is within 25 hours time-in-service or 30 days, whichever occurs first, which is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 839 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.
Torque inspecting the tailboom attachment hardware, and visually inspecting the sealant and the tailboom attachment structure takes about 2 work-hours for an estimated cost of $170 per helicopter and $142,630 for the U.S. fleet. If required, replacing a bolt and nut set takes about 2 work-hours and parts cost about $170 for an estimated cost of $340 per replacement. Stabilizing the torque takes about 1 work-hour for an estimated cost of $85 per instance. The FAA has no data to determine the costs to accomplish approved repairs. Reporting information takes about 1 work-hour for an estimated cost of $85 per helicopter and $71,315 for the U.S. fleet.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective January 12, 2023.
None.
This AD applies to Bell Textron Canada Limited Model 407 helicopters serial numbers 53000 through 53900 inclusive, 53911 through 53999 inclusive, 54000 through 54166 inclusive, 54300 through 54800 inclusive, 54805 through 54954 inclusive, 54956 through 54997 inclusive, 54999, and 56300 through 56304 inclusive, certificated in any category.
Joint Aircraft System Component (JASC) Code: 5302, Rotorcraft Tail Boom.
This AD was prompted by an accident. The FAA is issuing this AD to address failure of the tailboom attachment hardware. The unsafe condition, if not addressed, could result in separation of the tailboom from the helicopter and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, Transport Canada AD CF-2022-68, dated December 15, 2022 (Transport Canada AD CF-2022-68).
(1) Where Transport Canada AD CF-2022-68 requires compliance in terms of hours air time, this AD requires using hours time-in-service (TIS).
(2) Where Transport Canada AD CF-2022-68 refers to its effective date, this AD requires using the effective date of this AD.
(3) Where paragraph A. of Transport Canada AD CF-2022-68 refers to torque checks, this AD requires torque inspections.
(4) Where the service information referenced in paragraph A. of Transport Canada AD CF-2022-68 specifies to retain removed parts for further investigation, this AD does not include that requirement.
(5) Where paragraph A. of Transport Canada AD CF-2022-68 specifies to “carry out the repetitive torque check of the tailboom attachment nuts at all four locations in accordance with the applicable ASB until the torque has stabilized;” for this AD, accomplish that torque inspection after accumulating 1 hour TIS, but not to exceed 5 hours TIS, after replacing each affected bolt and nut set. If the torque on a tailboom attachment nut is not within its allowable torque limit, before further flight, re-torque the nut to its allowable torque limit. Thereafter, repeat the torque inspection of each tailboom attachment nut after accumulating 1 hour TIS, but not to exceed
(6) Where paragraph C. of Transport Canada AD CF-2022-68 refers to “defect,” this AD defines that as a crack, dent, loose fastener, unsecure attachment, deformation, or corrosion.
(7) Where paragraph C. of Transport Canada AD CF-2022-68 specifies to contact Bell Product Support Engineering for a repair or instructions to rectify any defect, this AD requires repair done in accordance with a method approved by the Manager, General Aviation & Rotorcraft Section, International Validation Branch, FAA; or Transport Canada; or Bell Textron Canada Ltd.'s Transport Canada Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.
(8) Where the service information referenced in paragraph C. of Transport Canada AD CF-2022-68 specifies to discard parts, this AD requires removing those parts from service.
(9) Where paragraph D. of Transport Canada AD CF-2022-68 specifies to report inspection results to Bell Product Support Engineering within 30 days after accomplishing the inspections required by paragraphs A. or C., this AD requires reporting inspection results at the applicable time in paragraph (h)(9)(i) or (ii) of this AD.
(i) If the inspection was done on or after the effective date of this AD: Submit the report within 10 days after accomplishing the actions required by paragraph A. or C. of Transport Canada AD CF-2022-68.
(ii) If the inspection was done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
Special flight permits may be issued in accordance with 14 CFR 21.197 and 21.199, provided no passengers are onboard.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Transport Canada AD CF-2022-68, dated December 15, 2022.
(ii) [Reserved]
(3) For Transport Canada AD CF-2022-68, contact Transport Canada, Transport Canada National Aircraft Certification, 159 Cleopatra Drive, Nepean, Ontario, K1A 0N5, CANADA; telephone 888-663-3639; email
(4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all Rolls-Royce Deutschland Ltd & Co KG (RRD) TAY 620-15 and TAY 650-15 model turbofan engines. This AD was prompted by reports of cracks on the high-pressure turbine (HPT) stage 2 intermediate air seal attachment bolts (attachment bolts). This AD requires repetitive inspections of the HPT stage 2 intermediate air seal and attachment bolts and, depending on the results of the inspections, replacement of attachment bolts and the HPT stage 1 and stage 2 rotor disks, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective January 12, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 12, 2023.
The FAA must receive comments on this AD by February 13, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material incorporated by reference in this final rule, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
Sungmo Cho, Aviation Safety Engineer,
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0184, dated September 2, 2022 (EASA AD 2022-0184) (referred to after this as “the MCAI”), to correct an unsafe condition for all RRD TAY 620-15 and TAY 650-15 model turbofan engines. The MCAI states that cracks on attachment bolts have been reported which, if not detected and corrected, could result in failure of HPT stage 1 and stage 2 rotor disks, high energy debris release, damage to the airplane, and reduced control of the airplane.
The FAA is issuing this AD to address the unsafe condition on these products.
You may examine the MCAI in the AD docket under Docket No. FAA-2022-1649.
The FAA reviewed EASA AD 2022-0184, dated September 2, 2022, which specifies procedures for repetitive inspections of the HPT stage 2 intermediate air seal and attachment bolts and, depending on the findings, replacement of all damaged parts.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
These products have been approved by the aviation authority of another country, and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition referenced in the MCAI described above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires accomplishing the actions specified in EASA AD 2022-0184, described previously, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the MCAI.”
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, EASA AD 2022-0184 will be incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA AD 2022-0184 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0184. Service information required by the EASA AD for compliance will be available at
Where EASA AD 2022-0184 requires replacement of all damaged parts, this AD requires replacement of attachment bolts and the HPT stage 1 and stage 2 rotor disks.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reason, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days for the same reasons the FAA found good cause to forego notice and comment.
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
Currently, there are no U.S. registered airplanes with the affected engines installed. If an affected engine is installed on an airplane, or if an airplane with an affected engine is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:
The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the inspection.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective January 12, 2023.
None.
This AD applies to Rolls-Royce Deutschland Ltd & Co KG TAY 620-15 and TAY 650-15 model turbofan engines.
Joint Aircraft System Component (JASC) Code 7240, Turbine Engine Combustion Section.
This AD was prompted by reports of cracks on high-pressure turbine (HPT) stage 2 intermediate air seal attachment bolts (attachment bolts). The FAA is issuing this AD to prevent failure of the HPT stage 1 and stage 2 rotor disks. The unsafe condition, if not addressed, could result in high energy debris release, damage to the airplane, and reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Perform all required actions within the compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2022-0184, dated September 2, 2022 (EASA AD 2022-0184).
(1) Where EASA AD 2022-0184 requires compliance from its effective date, this AD requires using the effective date of this AD.
(2) Where EASA AD 2022-0184 requires replacement of all damaged parts, this AD requires replacing cracked attachment bolts and HPT stage 1 and stage 2 rotor disks that show evidence of wear from broken attachment bolts.
(3) Where the service information referenced in EASA AD 2022-0184 specifies to replace the engine and send the removed engine to an approved TAY overhaul facility if indications of damage are found, this AD requires replacing cracked attachment bolts and HPT stage 1 and stage 2 rotor disks that show evidence of wear from broken attachment bolts.
(4) This AD does not adopt the “Remarks” paragraph of EASA AD 2022-0184.
Although the service information referenced in EASA AD 2022-0184 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k) of this AD and email to:
For more information about this AD, contact Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7241; email:
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) European Union Aviation Safety Agency AD 2022-0184, dated September 2, 2022.
(ii) [Reserved]
(3) For more information about EASA AD 2022-0184, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
Food and Drug Administration, HHS.
Final amendment; final order.
The Food and Drug Administration (FDA, Agency or we) is classifying the interventional cardiovascular implant simulation software device into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the interventional cardiovascular implant simulation software device's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices.
This order is effective December 28, 2022. The classification was applicable on September 8, 2021.
Judy Ji, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2543, Silver Spring, MD, 20993-0002, 301-796-6949,
Upon request, FDA has classified the interventional cardiovascular implant simulation software device as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by placing the device into a lower device class than the automatic class III assignment.
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for
On May 7, 2020, FDA received FEops NV's request for De Novo classification of the FEops HEARTguide. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on September 8, 2021, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 870.1405.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
At the time of classification, interventional cardiovascular implant simulation software device is for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met.
The Agency has determined under 21 CFR 25.34(b) 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 order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 860, subpart D, regarding De Novo classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801, regarding labeling, have been approved under OMB control number 0910-0485.
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
(b)
(1) Software verification, validation, and hazard analysis, with identification of appropriate mitigations, must be performed, including a full verification and validation of the software according to the predefined software specifications.
(2) Computational modeling verification and validation activities must be performed to establish the predictive capability of the device for its indications for use.
(3) Performance validation testing must be provided to demonstrate the accuracy and clinical relevance of the modeling methods for the intended implantation simulations, including the following:
(i) Computational modeling results must be compared to clinical data supporting the indications for use to demonstrate accuracy and clinical meaningfulness of the simulations;
(ii) Agreement between computational modeling results and clinical data must be assessed and demonstrated across the full intended operating range (
(iii) Endpoints (
(iv) Validation must be performed and controls implemented to characterize and ensure consistency (
(A) Testing must be performed using multiple qualified operators and using the procedure that will be implemented under anticipated conditions of use; and
(B) The factors (
(4) Human factors evaluation must be performed to evaluate the ability of the user interface and labeling to allow for intended users to correctly use the device and interpret the provided information.
(5) Device labeling must be provided that describes the following:
(i) Warnings that identify anatomy and image acquisition factors that may impact simulation results and provide cautionary guidance for interpretation of the provided simulation results;
(ii) Device simulation inputs and outputs, and key assumptions made in the simulation and determination of simulated outputs; and
(iii) The computational modeling performance of the device for presented simulation outputs, and the supporting evidence for this performance.
Office of Foreign Assets Control, Treasury.
Publication of Web General Licenses.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing two general licenses (GLs) issued pursuant to the Russian Harmful Foreign Activities Sanctions Regulations: GLs 8D and 40C, which were previously made available on OFAC's website.
GL 8D was issued on November 10, 2022. See
OFAC: Assistant Director for Licensing, 202-622-2480; Assistant Director for Regulatory Affairs, 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, 202-622-2490.
This document and additional information concerning OFAC are available on OFAC's website:
On November 10, 2022, OFAC issued GL 8D to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR). On November 14, 2022, OFAC issued GL 40C to authorize certain transactions otherwise prohibited by the RuHSR. At the time of issuance, OFAC made GLs 8D and 40C available on its website (
(a) Except as provided in paragraph (c) of this general license, all transactions prohibited by Executive Order (E.O.) 14024 involving one or more of the following entities that are related to energy are authorized, through 12:01 a.m. eastern daylight time, May 15, 2023.
(1) State Corporation Bank for Development and Foreign Economic Affairs Vnesheconombank;
(2) Public Joint Stock Company Bank Financial Corporation Otkritie;
(3) Sovcombank Open Joint Stock Company;
(4) Public Joint Stock Company Sberbank of Russia;
(5) VTB Bank Public Joint Stock Company;
(6) Joint Stock Company Alfa-Bank;
(7) Any entity in which one or more of the above persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest; or
(8) the Central Bank of the Russian Federation.
(b) For the purposes of this general license, the term “related to energy” means the extraction, production, refinement, liquefaction, gasification, regasification, conversion, enrichment, fabrication, transport, or purchase of petroleum, including crude oil, lease condensates, unfinished oils, natural gas liquids, petroleum products, natural gas, or other products capable of producing energy, such as coal, wood, or agricultural products used to manufacture biofuels, or uranium in any form, as well as the development, production, generation, transmission, or exchange of power, through any means, including nuclear, thermal, and renewable energy sources.
(c) This general license does not authorize:
(1) Any transactions prohibited by Directive 1A under E.O. 14024,
(2) The opening or maintaining of a correspondent account or payable-through account for or on behalf of any entity subject to Directive 2 under E.O. 14024,
(3) Any debit to an account on the books of a U.S. financial institution of the Central Bank of the Russian Federation; or
(4) Any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), including transactions involving any person blocked pursuant to the RuHSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.
(d) Effective November 10, 2022, General License No. 8C, dated June 14, 2022, is replaced and superseded in its entirety by this General License No. 8D.
Note to General License No. 8D. This authorization is valid until May 15, 2023 unless renewed.
Dated: November 10, 2022.
(a) Except as provided in paragraph (b), all transactions ordinarily incident and necessary to the provision, exportation, or reexportation of goods, technology, or services to ensure the safety of civil aviation involving one or more of the blocked entities listed in the Annex to this general license and that are prohibited by Executive Order (E.O.) 14024 are authorized, provided that:
(1) The aircraft is registered in a jurisdiction solely outside of the Russian Federation; and
(2) The goods, technology, or services that are provided, exported, or reexported are for use on aircraft operated solely for civil aviation purposes.
(b) This general license does not authorize:
(1) Any transactions prohibited by Directive 2 under E.O. 14024,
(2) Any transactions prohibited by Directive 4 under E.O. 14024,
(3) Any transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587 (RuHSR), including transactions involving any person blocked pursuant to the RuHSR other than the blocked entities listed in the Annex to this general license, unless separately authorized.
(c) Effective November 14, 2022, General License No. 40B, dated August 3, 2022, is replaced and superseded in its entirety by this General License No. 40C.
Dated: November 14, 2022.
List of blocked entities described in paragraph (a) of General License 40C:
(a) Public Joint Stock Company United Aircraft Corporation;
(b) Irkut Corporation Joint Stock Company;
(c) Energotsentr Irkut;
(d) Irkut-Avtotrans;
(e) Irkut-Remstroi;
(f) Irkut-Stanko Service;
(g) Rapart Servisez;
(h) Sportivno-Ozdorovitelnyi Tsentr Irkut-Zenit;
(i) Tipografiya Irkut;
(j) Joint Stock Company Ilyushin Finance Company;
(k) Open Joint Stock Company Ilyushin Aviation Complex;
(l) Public Joint Stock Company Taganrog Aviation Scientific-Technical Complex N.A. G.M. Beriev;
(m) Joint Stock Company Flight Research Institute N.A. M.M. Gromov;
(n) Tupolev Public Joint Stock Company;
(o) Limited Liability Company Kapo-Avtotrans;
(p) Limited Liability Company Kapo-Zhilbitservis;
(q) Limited Liability Company Networking Company Irkut;
(r) Joint Stock Company State Transportation Leasing Company;
(s) Emperor Aviation LTD; or
(t) Any entity in which one or more of the above persons own, directly or indirectly, individually or in the aggregate, a 50 percent or greater interest.
Coast Guard, DHS.
Temporary final rule.
The U.S. Coast Guard is establishing a temporary safety zone for the navigable waters in Chinese Harbor of Santa Cruz Island, California. This temporary safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by ongoing oil recovery operations relating to the grounding of a 60-foot fishing vessel in Chinese Harbor. Entry of persons or vessels into this safety zone is prohibited unless specifically authorized by the Captain of the Port Sector Los Angeles—Long Beach (COTP), or his designated representative.
This rule is effective without actual notice from December 28, 2022 until January 4, 2023. For the purposes of enforcement, actual notice will be used from December 21, 2022 until December 28, 2022.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email LCDR Maria Wiener, Waterways Management, U.S. Coast Guard Sector Los Angeles—Long Beach; telephone (310) 357-1603, email
The Coast Guard is issuing this temporary rule without prior notice and
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231) and 46 U.S.C. 70011(b)(3). The Captain of the Port Sector Los Angeles—Long Beach (COTP) has determined that potential hazards associated with emergency oil recovery operations will be a safety concern for anyone within a 4,000-yard radius of the grounded fishing vessel in Chinese Harbor. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while oil recovery operations take place in the vicinity of Chinese Harbor.
This rule establishes a safety zone from December 21, 2022 until January 4, 2023. The safety zone will cover all navigable waters from the surface to the sea floor in and around Chinese Harbor from the location of the commercial fishing vessel SPERANZA MARIE (Official Number 643138), currently on the shoreline at 34°01.59′ N, 119°36.32′ W and extending out along a 4,000-yard radius from the vessel. These coordinates are based on North American Datum of 1983. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or his designated representative. Sector Los Angeles—Long Beach may be contacted on VHF-FM Channel 16 or (310) 521-3801. The marine public will be notified of the safety zone via Broadcast Notice to Mariners.
A
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the limited size of the zone, which encompasses a two nautical mile radius at Chinese Harbor and two week duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone, which will impact a small, designated area of Chinese Harbor, Santa Cruz Island, CA. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the safety zone and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing an area extending 4,000 yards out from a grounded vessel in vicinity of Chinese Harbor and will last only while oil recovery operations are ongoing. It is categorically excluded from further review under paragraph L60, in Appendix A, Table 1 of DHS Instruction Manual 023-001-01, Rev. 1. A Record of Environmental Consideration (REC) is not require for emergency operations, but will be created if necessary.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by hailing Coast Guard Sector Los Angeles—Long Beach on VHF-FM Channel 16 or calling at (310) 521-3801. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve
revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) and South Coast Air Quality Management District (SCAQMD) portions of the California State Implementation Plan (SIP). These revisions concern emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NO
These rules are effective on January 27, 2023.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0846. All documents in the docket are listed on the
Donnique Sherman, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
On January 25, 2022 (87 FR 3736), the EPA proposed to approve the following rules into the California SIP.
SCAQMD Rule 1118.1 is designed to decrease VOC, sulfur dioxide, and nitrogen oxides emissions from non-refinery flares. SJVUAPCD Rule 4311 is designed to decrease NO
The EPA's proposed action provided a 30-day public comment period. During the comment period we received one comment in support of EPA's January 25, 2022 proposed action. We acknowledge the comment, and we are approving the rules into the SIP.
No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rules into the California SIP. The December 17, 2020 version of SJVUAPCD Rule 4311 will replace the previously approved version (76 FR 68106) of this rule in the SIP. The January 4, 2019 version of SCAQMD Rule 1118.1 is a new rule in the SIP.
SJVUAPCD evaluated the socioeconomic impact analysis of the amendments to Rule 4311.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SJVUAPCD and SCAQMD rules identified in section I. of this preamble. These rules concern emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NOx) from flares. The EPA has made, and will continue to make, these documents available through
Additional information about these statutes and Executive orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
As described above in section IV, the state evaluated environmental justice considerations as part of its SIP submittal for Rule 4311. The EPA considered the state's evaluation as part of EPA's review. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Thus, there is no information in the record inconsistent with the stated goals of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, the Environmental Protection Agency amends Part 52, chapter I, title 40 of the Code of Federal Regulations as follows:
42 U.S.C. 7401
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(587) Amended regulations for the following APCDs were submitted on March 12, 2021 by the Governor's designee as an attachment to a letter dated March 10, 2021.
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(B) [Reserved]
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National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; notification of availability of a final environmental assessment.
We, NMFS, designate and authorize the release of a nonessential experimental population (NEP or experimental population) of Central Valley (CV) spring-run Chinook salmon (
The final rule is effective January 27, 2023.
The Final EA and other reference materials regarding this final rule can be obtained at NMFS's National Environmental Policy Act (NEPA) website at:
Steve Edmonson, NMFS, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814, 916-930-3600, or Adrienne Lohe, NMFS Office of Protected Resources, 301-427-8442.
On December 11, 2020, NMFS published a proposed rule in the
NMFS listed the CV spring-run Chinook salmon Evolutionarily Significant Unit (ESU)
In 2014, we adopted a final recovery plan for the CV spring-run Chinook salmon ESU (79 FR 42504, July 22, 2014). The Central Valley recovery plan identifies re-establishing populations of CV spring-run Chinook salmon above impassable barriers to unoccupied historical habitats as an important recovery action (NMFS 2014). More specifically, the Central Valley recovery plan explains that re-establishing populations above impassable barriers, such as Englebright Dam on the Yuba River (Yuba and Nevada Counties, California), would aid in recovery of the ESU by increasing abundance, spatial structure and diversity and by reducing the risk of extinction to the ESU as a whole.
NMFS is issuing a rule to (a) designate and authorize the release of an experimental population of CV spring-run Chinook salmon pursuant to ESA section 10(j) in the upper Yuba River watershed upstream of Englebright Dam, and (b) establish take prohibitions for the experimental population and exceptions for particular activities.
This is a final rule stemming from a proposed rule that was published December 11, 2020 (85 FR 79980). The nonessential experimental population (NEP) Area includes the entire upper Yuba River watershed, which extends from the crest of the Sierra-Nevada Mountains down to Englebright Dam. It is located north of the cities of Grass Valley and Nevada City, and east of the cities of Marysville and Yuba City, California. The NEP Area is part of the species' historical range. The upper Yuba River experimental population is all CV spring-run Chinook salmon, including fish released or propagated, naturally or artificially, within the NEP Area.
Section 10(j) of the ESA (16 U.S.C. 1539(j)) allows the Secretary of Commerce to authorize the release of any population of a listed species outside their current range if the release “furthers their conservation.” An experimental population is a population that is geographically separate from nonexperimental populations of the same species.
Before authorizing the release of an experimental population, section 10(j)(2)(B) requires that the Secretary must “by regulation identify the population and determine, on the basis of the best available information, whether or not the population is essential to the continued existence of the listed species.
An experimental population is treated as a threatened species, except that non-essential populations do not receive the benefit of certain protections normally applicable to threatened species (ESA section 10(j)(2)(C)). Below we discuss the impact of treating experimental populations as threatened species and of exceptions that apply to experimental populations.
For endangered species, section 9 of the ESA prohibits take of those species. For a threatened species, ESA section 9 does not specifically prohibit take of those species, but the ESA instead authorizes NMFS to adopt regulations under section 4(d) that it deems necessary and advisable for species conservation, including prohibiting take. The experimental population of CV spring-run Chinook salmon must generally be treated as a threatened species. Therefore, we issue tailored protective regulations under ESA section 4(d) for the experimental population of CV spring-run Chinook salmon to identify take prohibitions necessary and advisable to provide for the conservation of the species with exceptions for particular activities.
Section 7 of the ESA provides for Federal interagency cooperation and consultation on Federal agency actions. Section 7(a)(1) directs all Federal agencies, in consultation with NMFS as applicable depending on the species, to use their authorities to further the purposes of the ESA by carrying out programs for the conservation of listed species. Section 7(a)(2) requires all Federal agencies, in consultation with NMFS as applicable depending on the species, to ensure any action they authorize, fund or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 applies equally to endangered and threatened species.
Although ESA section 10(j) provides that an experimental population must generally be treated as a threatened species, for the purposes of ESA section 7, if the experimental population is determined to be a NEP, section
NMFS has designated three experimental populations (78 FR 2893, January 15, 2013; 78 FR 79622, December 31, 2013; 79 FR 40004, July 11, 2014) and promulgated regulations, codified at 50 CFR part 222, subpart E, to implement section 10(j) of the ESA (81 FR 33416, May 26, 2016). NMFS' implementing regulations include the following provisions:
The provision at 50 CFR 222.501(b) defines an “essential experimental population” as an experimental population that if lost, the survival of the species in the wild would likely be substantially reduced. All other experimental populations are classified as nonessential.
The provision at 50 CFR 222.502(b) provides, before authorizing the release of an experimental population, the Secretary must find by regulation that such release will further the conservation of the species. In addition, 50 CFR 222.502(b) provides that in making such a finding, the Secretary shall utilize the best scientific and commercial data available to consider:
• Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere;
• The likelihood that any such experimental population will become established and survive in the foreseeable future;
• The effects that establishment of an experimental population will have on the recovery of the species; and
• The extent to which the introduced population may be affected by existing or anticipated Federal or state actions or private activities within or adjacent to the experimental population area.
The provision 50 CFR 222.502(c) describes 4 components that must be provided in any NMFS regulations designating an experimental population under ESA section 10(j):
• Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location; actual or anticipated migration; number of specimens released or to be released; and other criteria appropriate to identify the experimental population(s);
• A finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild;
• Management restrictions, protective measures, or other special management concerns of that population, as appropriate, which may include, but are not limited to, measures to isolate and/or to contain the experimental population designated in the regulation from nonexperimental populations and protective regulations established pursuant to section 4(d) of the ESA; and
• A process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.
In addition, as described above, ESA section 10(j)(1) defines an “experimental population” as any population authorized for release but only when, and at such times as, the population is wholly separate geographically from the non-experimental populations of the same species. Accordingly, we must establish that there are such times and places when the experimental population is wholly geographically separate. Similarly, the statute requires that we identify the experimental population; the legislative history indicates that the purpose of this requirement is to provide notice as to which populations of listed species are experimental (see Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep No. 97-835, at 34 (1982)).
We discuss in more detail below how we considered each of these elements.
Life history and the historical population trend of CV spring-run Chinook salmon are summarized by Healy (1991), United States Fish and Wildlife Service (USFWS) (1995), Yoshiyama
The CVTRT also recommended spatial structure and diversity metrics for each population (Lindley
In 2016, NMFS completed a periodic review as required by the ESA section
Section 3(3) of the ESA, 16 U.S.C. 1532(3), defines “conservation” as the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. We discuss in more detail below each of the factors considered in determining if authorizing release of an experimental population in the NEP Area would further the conservation of CV spring-run Chinook salmon.
Under 50 CFR 222.502(b), NMFS must consider several factors in finding whether authorizing release of an experimental population will further the conservation of the species, including any possible adverse effects on extant populations of the species as a result of removal of individuals for introduction elsewhere; the likelihood that the experimental population will become established and survive in the foreseeable future; the effects that establishment of the experimental population will have on the recovery of the species; and the extent to which the experimental populations may be affected by existing or anticipated Federal or state actions or private activities within or adjacent to the experimental population area.
Regarding the likelihood that reintroduction efforts will be successful in the foreseeable future, an important question is: what are the most appropriate sources of broodstock to establish the experimental population, and are the sources available? Reintroduction efforts have the best chance for success when the donor population has life-history characteristics compatible with the anticipated environmental conditions of the habitat into which fish will be reintroduced (Araki
We have preliminarily identified a donor source for reintroduction into the upper Yuba River as CV spring-run Chinook salmon produced from the FRH. The Yuba River is a tributary to the Feather River and CV spring-run Chinook salmon from the FRH are the geographically closest donor source that could be used with minimal impact to the wild population for reintroduction into the upper Yuba River. The donor stock raised at the FRH may include CV spring-run Chinook salmon from either the Feather or Yuba River. NMFS, in consultation with the California Department of Fish and Wildlife (CDFW), may later consider diversifying the donor stock with CV spring-run Chinook salmon from other nearby streams if those populations can sustain removal of fish without adverse population level effects.
Use of donor stock from the FRH for the initial phases of a reintroduction program will minimize the number of individuals needed from existing wild populations. Donor stock supplementation, if necessary, would be dependent upon genetic diversity needs and the extent of adverse effects to other populations. Although donor stocks have not been determined, fish produced from the FRH are expected to be the initial source of individuals to establish an experimental population of CV spring-run Chinook salmon in the NEP Area. Any collection of CV spring-run Chinook salmon would be subject to NMFS's approval of a permit under ESA section 10(a)(1)(A), which potentially includes a Hatchery Genetic Management Plan (HGMP) in relation to a hatchery stock and will include additional analysis under NEPA and ESA section 7. Once a self-sustaining population is established, it is anticipated that the FRH contribution (and contributions from other locations) of CV spring-run Chinook salmon would be phased out.
We also consider the suitability of habitat available to the experimental population. NMFS initiated a habitat assessment of the upper Yuba River and determined conditions were suitable for Chinook salmon spawning, adult holding, and juvenile rearing (Stillwater Sciences 2013). The relative abundance of habitat types, habitat quality and environmental conditions vary between the North, Middle, and South Yuba Rivers. Under current conditions when compared to one another, habitat conditions are most suitable in the North Yuba River. The Middle Yuba River maintains significant quantities of suitable habitat and habitat conditions are currently less suitable in the South Yuba River. Habitat conditions in the Middle and South Yuba Rivers will likely improve with additional instream flow releases from dams in the upper watersheds as part of the Federal Energy Regulatory Commission's (FERC) relicensing process pursuant to the Federal Power Act (FPA).
In addition, there are Federal and state laws and regulations that will help ensure the establishment and survival of the experimental population by protecting aquatic and riparian habitat in the NEP Area. Section 404 of the Clean Water Act (CWA), 33 U.S.C. 1344, establishes a program to regulate the discharge of dredged or fill material into waters of the United States, which generally requires avoidance, minimization, and mitigation for potential adverse effects of dredge and fill activities within the nation's waterways. Under CWA section 401, 33 U.S.C. 1341, a Federal agency may not issue a permit or license to conduct any activity that may result in discharge into waters of the United States unless a state or authorized tribe, where the discharge would originate, issues a section 401 water quality certification verifying compliance with existing water quality requirements or waives the certification requirement. In addition, construction and operational storm water runoff is subject to restrictions under CWA section 402, 33 U.S.C. 1342, which establishes the National Pollutant Discharge Elimination System permit program, and state water quality laws.
FERC, pursuant to the FPA and the U.S. Department of Energy Organization Act, is authorized to issue licenses for up to 50 years for the construction and operation of non-Federal hydroelectric developments subject to its jurisdiction. The FPA authorizes NMFS to issue mandatory prescriptions for fish passage and recommend other measures to
The Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 U.S.C. 1801
At the state level, the California Fish and Game Code (CFGC) Fish and Wildlife Protection and Conservation provisions (CFGC section 1600,
Regarding the effects that establishment of the experimental population will have on the recovery of the species, the Central Valley recovery plan (NMFS 2014) characterizes the NEP Area as having the potential to support a viable population of Chinook salmon. The Central Valley recovery plan establishes a framework for reintroduction of Chinook salmon and steelhead to historical habitats upstream of dams. The framework recommends that a reintroduction program should include feasibility studies, habitat evaluations, fish passage design studies, and a pilot reintroduction phase prior to implementation of the long-term reintroduction program. In addition, the Central Valley recovery plan contains specific management strategies for recovering CV spring-run Chinook salmon that include securing existing populations and reintroducing this species into historically occupied habitats upstream of rim dams in the Central Valley of California (NMFS 2014). The Central Valley recovery plan concludes, and we continue to agree, that establishing an experimental population in the NEP Area that persists into the foreseeable future is expected to reduce extinction risk from natural and anthropogenic factors by increasing abundance, productivity, spatial structure, and diversity within California's Central Valley. These expected improvements in the overall viability of CV spring-run Chinook salmon, in addition to other actions being implemented throughout the Central Valley, which are described next, will contribute to this species' near-term viability and recovery.
Across the Central Valley, a number of actions are being undertaken to improve habitat quality and quantity for CV spring-run Chinook salmon. Collectively, implementation of the San Joaquin River Restoration Program (
Climate change is expected to exacerbate existing habitat stressors in California's Central Valley and increase threats to Chinook salmon and steelhead by reducing the quantity and quality of freshwater habitat (Lindley
Existing or anticipated Federal or state actions or private activities within or adjacent to the NEP Area may affect the experimental population. The NEP Area is sparsely populated and ongoing state, Federal and local activities include forest management, limited mining, road maintenance, limited residential development, grazing, and tourism and recreation. These activities will likely continue into the future and are anticipated to have minor impacts to CV spring-run Chinook salmon in the NEP Area and adjacent areas. Potential impacts from these and other activities are further minimized through application of the aforementioned state and Federal regulations. Dams and water diversions in the NEP Area currently limit fish populations in some parts of the NEP Area. NMFS anticipates releases of CV spring-run Chinook salmon will be specifically targeted into riverine reaches with abundant high-quality habitats that are not blocked by barriers to fish passage, impaired by high water temperatures or inadequate flows. The habitat improvement actions called for in the Central Valley recovery plan, as well as compliance with existing Federal, state, and local laws, statutes, and regulations, including those mentioned above, are expected to contribute to the establishment and survival of the experimental population in the upper Yuba River in the foreseeable future. Although the donor source for this reintroduction effort is anticipated to include hatchery-origin individuals from the FRH, based on the factors discussed above, we conclude it is probable that a self-sustaining experimental population of CV spring-run Chinook salmon will become established and survive in the upper Yuba River. Furthermore, we conclude that such a self-sustaining experimental population of genetically compatible individuals is likely to further the conservation of the species, as discussed above.
Section 10(j)(2)(B) of the ESA requires we identify experimental populations by regulation. ESA section 10(j)(1) also provides that a population is considered an experimental population only when, and at such times as, it is wholly separate geographically from the nonexperimental population of the same species. The NEP Area would extend upstream from Englebright Dam and include the North, Middle, and South Yuba Rivers and their tributaries up to the ridgeline. The experimental
The NEP Area provides the requisite level of geographic separation because the extant population of CV spring-run Chinook salmon are currently extirpated from this area due to the presence of Englebright Dam, which blocks their upstream migration. Straying of fish from other spring-run Chinook populations into the NEP Area is currently not possible due to the presence of this dam. As a result, the geographic description of the extant CV spring-run Chinook ESU does not include the NEP Area.
NMFS anticipates that CV spring-run Chinook salmon used for the initial stages of a reintroduction program would be marked, for example, with specific fin clips and/or coded-wire tags to evaluate stray rates and allow for broodstock collection of returning adults that originated from the experimental population. Any marking of individuals of the experimental population, such as clips or tags, would be for the purpose of evaluating the effectiveness of a near-term and long-term fish passage program, and would not be for the purpose of identifying fish from the NEP Area other than for broodstock collection of returning adults. As discussed above, the experimental population is identified based on the geographic location of the fish. Indeed, if the reintroduction is successful as expected, and fish begin reproducing naturally, their offspring would not be distinguishable from fish from other Chinook salmon populations. Outside of the NEP Area,
As discussed above, ESA section 10(j)(2)(B) requires the Secretary to determine whether experimental populations would be “essential to the continued existence” of the listed species. The statute does not elaborate on how this determination is to be made. However, as noted above, Congress gave some further attention to the term when it described an essential experimental population as one whose loss “would be likely to appreciably reduce the likelihood of survival of that species in the wild” (Joint Explanatory statement, supra, at 34). NMFS regulations incorporated this concept into its definition of an essential experimental population at 50 CFR 222.501(b), which provides an experimental population that if lost, the survival of the species in the wild would likely be substantially reduced.
In determining whether the experimental population of CV spring-run Chinook salmon is essential, we used the best available information as required by ESA section 10(j)(2)(B). Furthermore, we considered the geographic location of the experimental population in relation to other populations of CV spring-run Chinook salmon, and the likelihood of survival of these populations without the existence of the experimental population.
The CV spring-run Chinook salmon ESU includes four independent populations and several dependent or establishing populations. Given current protections and restoration efforts, these populations are persisting without the presence of a population in the NEP Area. It is expected that the experimental population will exist as a separate population from those in the Sacramento River basin and will not be essential to the survival of those populations. Based on these considerations, we conclude the loss of the experimental population of CV spring-run Chinook in the NEP Area is not likely to appreciably reduce the likelihood of the survival of the species in the wild. Accordingly, NMFS is designating this experimental population as nonessential. Under section 10(j)(2)(C)(ii) of the ESA we cannot designate critical habitat for a nonessential experimental population.
As indicated above, ESA section 10(j)(2)(C) requires that experimental populations be treated as threatened species, except, for nonessential experimental populations, certain portions of ESA section 7 do not apply and critical habitat cannot be designated. Congress intended that the Secretary would issue regulations deemed necessary and advisable to provide for the conservation of experimental populations just as he or she does, under ESA section 4(d), for any threatened species (Joint Explanatory Statement, supra, at 34). In addition, when amending the ESA to add section 10(j), Congress specifically intended to provide broad discretion and flexibility to the Secretary in managing experimental populations so as to reduce opposition to releasing listed species outside their current range (H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)). Therefore, we are exercising the authority to issue protective regulations under ESA section 4(d) for the experimental population of CV spring-run Chinook salmon to identify take prohibitions necessary to provide for the conservation of the species and otherwise provide assurances to people in the NEP Area.
The ESA defines “take” to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). Concurrent with the ESA section 10(j) experimental population designation, we adopt protective regulations under ESA section 4(d) for the experimental population that would prohibit take of CV spring-run Chinook salmon that are part of the experimental population, except in the following circumstances in the NEP Area:
1. Any take by authorized governmental entity personnel acting in compliance with 50 CFR 223.203(b)(3) to aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for scientific study;
2. Any take that is incidental
3. Any take that is pursuant to a permit issued by NMFS under section
Evaluation of the success of an experimental population release will require new monitoring programs developed specifically for this purpose. NMFS anticipates monitoring in the NEP Area, including fish passage efficiency, spawning success, adult and smolt injury and mortality rates, juvenile salmon collection efficiencies, competition with resident species, predation, disease and other types of monitoring will be necessary to gauge the success of the program. We anticipate the status of a reintroduced population of CV spring run Chinook salmon in the NEP Area would be evaluated during NMFS' five-year status review process under ESA 4(c)(2). During the 5-year status review, NMFS may evaluate whether the current designation under ESA section 10(j) as a nonessential experimental population is still warranted.
The public comment period for the proposed rule and draft EA was open from December 11, 2020, until March 12, 2021. Public scoping meetings were held February 3 and 11, 2021, to provide background on the project, answer questions and provide details on how to submit written comments. The purpose of the comment period is to help us better understand the concerns of the public on the experimental population designation, take and take exceptions, and associated draft EA. During the comment period, NMFS received 54 written letters with comments, germane to the rulemaking, from entities representing various agencies, nongovernmental organizations, and individuals.
In addition, NMFS engaged in prior public outreach since 2009 including numerous meetings, forums, and discussions regarding reintroduction in the upper Yuba River watershed. Outreach included multi-stakeholder forums, both federally recognized and non-recognized tribes, the Yuba Salmon Forum, the North Yuba Reintroduction Initiative, the Yuba Salmon Partnership and the Yuba Salmon Reintroduction Working Group. These various groups included a diverse array of stakeholders familiar with the Yuba River watershed, including water agencies, tribes, county officials, landowners and managers, and non-governmental organizations.
EA Appendix C contains the public comment letters received and EA Appendix D contains detailed responses. A summary of the comments and our responses to those comments is presented here. Please review EA Appendix D for additional comments and responses to comments not included herein.
Expanding the 4(d) rule to include areas downstream of the NEP Area to the current listed range of the CV spring-run Chinook salmon ESU is not necessary because an existing 4(d) rule is in place for downstream areas. When CV spring-run Chinook salmon that originated from within the NEP Area are downstream of Englebright Dam, they will be covered under the existing 4(d) rule and will have the same protections as individuals in the extant ESU.
NMFS anticipates a reintroduction effort will occur in the upper Yuba River with the goal of furthering the conservation and recovery of CV Chinook salmon. NMFS' rulemaking designates and authorizes release of a nonessential experimental population of CV spring-run Chinook salmon, pursuant to ESA section 10(j), in the upper Yuba River and its tributaries upstream of Englebright Dam, and establishes take prohibitions for the nonessential experimental population and exceptions for particular activities under ESA section 4(d). Release of fish would not occur until after the completion of additional future actions as part of either a pilot reintroduction program and/or a long-term project-specific reintroduction effort. NMFS' rulemaking is an administrative step regarding the NEP designation and authorization for release of CV spring-run Chinook salmon. The rulemaking does not include or authorize specific actions regarding the capture, transport of CV spring-run Chinook salmon individuals or identification of precise release locations. These steps are necessary to implement a future reintroduction effort. NMFS intends to develop a reintroduction plan in cooperation with CDFW and other stakeholders prior to the release of CV spring-run Chinook salmon into the NEP Area. The reintroduction plan will include details regarding the source population, numbers and life stages of fish to be released, methods of fish transport, how fish will be marked and release locations within the NEP Area. Additionally, threatened CV spring-run Chinook salmon individuals from outside the NEP Area will not be captured, transported or released into the NEP Area until the necessary State of California and Federal permits are acquired by the permittee(s) for either a pilot program or long-term project-specific reintroduction effort. For example, future permitting under section 10(a)(1)(A) will be required once a reintroduction plan is submitted for regulatory review. Any collection of CV spring-run Chinook salmon as part of a pilot program or a project-specific reintroduction plan would be subject to NMFS's approval of a permit under ESA section 10(a)(1)(A), which will require additional analyses of the specific plan for capture, transport, and release of individuals under the National Environmental Policy Act (NEPA) and ESA section 7.
(2) Re-establishing populations of CV spring-run Chinook salmon upstream of California's Central Valley rim dams, including the upper Yuba River, would aid in the conservation and recovery of the CV spring-run Chinook salmon ESU by increasing abundance and productivity, improving spatial structure and diversity, and reducing the risk of extinction (see EA section 1.2.5). NMFS' 2014 Central Valley recovery plan emphasizes that reintroduction of all ESA listed Central Valley salmonids into some of their currently blocked but historically accessible habitats is necessary for their conservation and recovery. Reintroduction into the upper Yuba River clearly follows recovery plan recommendations and is anticipated to directly contribute to the conservation of the ESU. In contrast, not moving forward with a reintroduction will ensure that the CV spring-run Chinook salmon remain at high risk of extinction.
(3) Included in NMFS 10(j) regulations is the requirement that NMFS have a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species. The ESA requires that NMFS conduct a status review every five years for all listed species under its regulatory jurisdiction. These requirements would ensure NMFS tracks the status of the experimental population and would develop information to assess the effectiveness of the rule, and if necessary, would trigger revision to the regulation through the rulemaking process. This would ensure that the reintroduction of CV spring-run Chinook to the NEP Area is providing for the conservation of the species as expected. Also, it would ensure the nonessential designation is reviewed periodically, and updated by regulation, if necessary. The best available information on habitat in the NEP Area indicates suitable habitat exists for CV spring-run Chinook salmon.
(4) EA Section 7.4 describes the effects of past, present, and reasonably foreseeable future actions. EA section 7.5 describes incremental impacts when added to other past, present, and reasonably foreseeable future actions. Release locations will occur in reaches with suitable habitat for the experimental population within the NEP Area.
The NEP Area, as described in the EA and rule, includes the entire upper Yuba River watershed, which extends from the crest of the Sierra-Nevada Mountains down to Englebright Dam. As described in the draft EA and proposed rule, the amount of potentially suitable habitat for anadromous salmonids in the upper Yuba River varies as a function of flow and related environmental conditions such as water temperature. Dams and water diversions in the NEP Area currently limit suitable habitat in some areas. NMFS anticipates a future reintroduction effort would target stream reaches with suitable habitat. The NEP Area includes more than the actual riverine areas where habitat could support reintroduced fish. The size of the NEP Area was specifically designed to account for possible volitional straying of CV spring-run Chinook salmon from areas targeted for release as part of a future reintroduction effort. The NEP Area also expands beyond riverine areas in order to provide ESA section 4(d) coverage for otherwise legal activities.
After review of the comments and further consideration, we have decided to adopt the proposed rule that was published in the
Based on the best available information, we determine that the designation of and release of a nonessential experimental population of CV spring-run Chinook salmon in the upper Yuba River NEP Area will further the conservation of CV spring-run Chinook salmon. CV spring-run Chinook salmon used to initiate the reintroduction are anticipated to come from the FRH using either donor stock from the Feather or Yuba Rivers, which is part of the CV spring-run Chinook salmon ESU. The collection of donor stock from the FRH will require issuance of a permit under section 10(a)(1)(A) of the ESA, which includes analysis under NEPA and ESA section 7. The experimental population fish are expected to remain geographically separate from the extant CV spring-run Chinook salmon ESU during the life stages in which they remain in, or are returned to, the NEP Area. At all times when members of the experimental population are downstream of Englebright Dam, the experimental population designation will not apply. Establishing an experimental population of CV spring-run Chinook salmon in the NEP Area would likely contribute to the viability of the ESU. Authorization for the experimental population release is consistent with the 2014 Central Valley recovery plan, while at the same time ensuring that a reintroduction will not impose undue regulatory restrictions on landowners and third parties.
We further determine, based on the best available scientific information, that the experimental population would not be essential to the continued existence of the CV spring-run Chinook salmon ESU, because absence of the experimental population would not be likely to appreciably reduce the likelihood of the survival of the ESU in the wild. However, as described above, the experimental population is expected to contribute to the recovery of the CV spring-run Chinook salmon ESU if reintroduction is successful. We therefore designate the population to be released as a nonessential experimental population.
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act (section 515 of Pub. L. 106-554) in the
This final rule has been determined by the Office of Management and Budget to be not significant under Executive Order 12866.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 801
The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy at the proposed rule stage that this rule will not have a significant effect on external entities, including small businesses, small organizations, or small governments. No comments were received regarding the economic impact of this final rule on small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. Because this rule requires no additional regulatory requirements for activities within the affected area, a final regulatory flexibility analysis is not required and one was not prepared.
In accordance with Executive Order 12630, the final rule does not have significant takings implications. A takings implication assessment is not required because this final rule: (1) would not effectively compel a property owner to have the government physically invade their property, and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This final rule would substantially advance a legitimate Government interest (conservation and recovery of a listed fish species) and would not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132, we have determined that this final rule does not have federalism implications as that term as defined in Executive Order 13132.
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA), we have analyzed the impact on the human environment and considered a reasonable range of alternatives for this final rule. We made the draft EA available for public comment along with the rule, received 54 letters with comments germane to the rule, and responded to those comments in an Appendix to the EA. We have prepared a final EA and Finding of No Significant Impact (FONSI) on this action and have made these documents available for public inspection (see
Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. If we issue a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.
There are no tribally owned or managed lands in the NEP Area. As part of NMFS's obligations under the National Historic Preservation Act, NMFS inquired with federally recognized and non-federally recognized tribes with potential interest in the NEP Area to inform them of the rule and solicit information on cultural resources eligible for listing on the National Register of Historic Places (letters dated May 23, 2017, from Maria Rea, Central Valley Office Supervisor, NMFS, and letters dated May 26, 2020, from Cathy Marcinkevage, Central Valley Office Supervisor, NMFS). To date responses have been limited and no concerns over the proposed rule have been raised. NMFS invites tribes to meet with us to have detailed discussions that could lead to government-to-government consultation meetings with tribal governments. We will continue to coordinate with the affected tribes.
A complete list of all references cited in this final rule is available upon request from National Marine Fisheries Service office (see
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set out in the preamble, 50 CFR part 223 is amended as follows:
16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361
(e) * * *
(d)
(2)
(3)
(4)
(i) Any taking of Central Valley spring-run Chinook salmon by authorized governmental entity personnel acting in compliance with § 223.203(b)(3) to aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for scientific study;
(ii) Any taking of Central Valley spring-run Chinook salmon that is unintentional, not due to negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise lawful activity; and
(iii) Any taking of Central Valley spring-run Chinook salmon pursuant to a permit issued by the National Marine Fisheries Service (NMFS) under section 10 of the ESA (16 U.S.C. 1539) and regulations in part 222 of this chapter applicable to such a permit.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus SAS Model A330-201, -202, -203, -301, -302, and -303 airplanes. This proposed AD was prompted by reports of corrosion and cracks found on engine inlet attach fittings. This proposed AD would require an inspection to determine whether affected engine inlet attach fittings (brackets) are installed, and replacement of those affected engine inlet attach fittings or replacement with an inlet cowl having no affected engine inlet attach fittings, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). This proposed AD would also prohibit the installation of affected parts. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by February 13, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material that is proposed for IBR in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3229; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3229; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0133, dated July 5, 2022 (EASA AD 2022-0133) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A330-201, -202, -203, -301, -302, and -303 airplanes. The MCAI states that findings of corrosion and cracks on engine inlet attach fittings have been reported. It was determined that the affected fittings are susceptible to stress corrosion cracking. The MCAI notes that stress corrosion cracking, if not detected and corrected, could lead to failure of one or more fittings, possibly resulting in damage to the airplane or injury to occupants.
You may examine the MCAI in the AD docket at
EASA AD 2022-0133 specifies procedures for an inspection to determine whether affected engine inlet attach fittings (those having certain part numbers and made of aluminum alloy 7175-T66 or 7075-T6) are installed, and replacement of those affected engine inlet attach fittings with serviceable parts or replacement with an inlet cowl having no affected engine inlet attach fittings. EASA AD 2022-0133 also prohibits the installation of affected parts. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2022-0133 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0133 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0133 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0133 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0133. Service information required by EASA AD 2022-0133 for compliance will be available at
The FAA estimates that this AD, if adopted as proposed, would affect 11 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by February 13, 2023.
None.
This AD applies to all Airbus SAS Model A330-201, -202, -203, -301, -302, and -303 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 71, Powerplant.
This AD was prompted by reports of corrosion and cracks found on engine inlet attach fittings. The FAA is issuing this AD to detect and correct stress corrosion cracking. The unsafe condition, if not addressed, could result in failure of one or more fittings, possibly resulting in damage to the airplane or injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2022-0133, dated July 5, 2022.
(1) Where EASA AD 2022-0133 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2022-0133 does not apply to this AD.
Although the service information referenced in EASA AD 2022-0133 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(3)
For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3229; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2022-0133, dated July 5, 2022.
(ii) [Reserved]
(3) For EASA AD 2022-0133, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Allied Ag Cat Productions, Inc. (Allied Ag Cat) Model G-164A and G-164B airplanes with certain supplemental type certificates (STCs) installed. This proposed AD was prompted by an accident involving an Allied Ag Cat Model G-164B airplane where the propeller pitch control (PPC) linkage detached from the PPC of the engine and resulted in an accident that significantly damaged the airplane and injured the pilot. This proposed AD would require installing a secondary retention feature (bolt, washer, and safety wire) on the PPC lever and the PPC assembly. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by February 13, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact Honeywell International, Inc., 111 South 34th Street, Phoenix, AZ 85034; phone: (800) 601-3099; website:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
Justin Carter, Aviation Safety Engineer, Fort Worth ACO Branch, FAA, 10101 Hillwood Parkway, Fort Worth, TX 76177; phone: (817) 222-5146; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Justin Carter, Aviation Safety Engineer, Fort Worth ACO Branch, FAA, 10101 Hillwood Parkway, Fort Worth, TX 76177. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The FAA received a report of an accident involving an Allied Ag Cat Model G-164 airplane where the PPC linkage detached from the PPC of the engine. The pilot sustained serious injuries, and the airplane was substantially damaged. The root cause was determined to be a lack of a secondary retention feature for the PPC of the engine.
This condition, if not addressed, could result in reduced control of the airplane.
Aircraft configurations for airplanes with the potential for this condition to exist are as follows:
• Model G-164A airplanes with STC No. SA7769SW, SA7966SW, or SA8720SW installed; and
• Model G-164B airplanes with STC No. SA7546SW, SA7966SW, SA7987SW, or SA8720SW installed.
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of these same type designs.
The FAA reviewed Honeywell Service Bulletin TPE331-72-2190, Revision 0, dated December 21, 2011. This service information identifies the affected PPC assemblies and applicable engines, and specifies procedures for reworking the affected PPC assemblies to incorporate a threaded hole in the splined end of the shouldered shaft. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA reviewed the Honeywell TPE331 Propeller Pitch Control Lever letter, dated August 26, 2011, addressed to the original equipment manufacturer (OEM). This letter informs the OEM of a report Honeywell received about the TPE331 PPC lever shaft becoming detached from the PPC assembly cam shaft and communicates the future development of a Honeywell service bulletin (released as Honeywell Service Bulletin TPE331-72-2190, Revision 0, dated December 21, 2011).
This proposed AD would require installing a secondary retention feature (bolt, washer, and safety wire) on the PPC lever and the PPC assembly.
The FAA estimates that this AD, if adopted as proposed, would affect 200 airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by February 13, 2023.
None.
This AD applies to the following Allied Ag Cat Productions, Inc. airplanes, all serial numbers, certificated in any category.
(1) Model G-164A airplanes with Supplemental Type Certificate (STC) No. SA7769SW, SA7966SW, or SA8720SW installed.
(2) Model G-164B airplanes with STC No. SA7546SW, SA7966SW, SA7987SW, or SA8720SW installed.
Joint Aircraft System Component (JASC) Code 6120, Propeller Controlling System.
This AD was prompted by a report of an accident caused by the detachment of the propeller pitch control (PPC) linkage from the PPC of the engine. The FAA is issuing this AD to prevent the PPC linkage from detaching from the PPC of the engine. The unsafe condition, if not addressed, could result in reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD, install a secondary retention feature (bolt, washer, and safety wire) on the PPC lever and the PPC assembly. If rework of the PPC assembly (specifically, the shouldered shaft within the cam assembly within the PPC assembly) is required to do this installation, do the rework in accordance with the procedures in Section 3.C(3)(d)2 of Honeywell Service Bulletin TPE331-72-2190, Revision 0, dated December 21, 2011. After the rework is completed, re-identify the part number of the PPC assembly, cam assembly, and shouldered shaft, in accordance with Sections 3.C(4), 3.C(5), and 3.C(7), as applicable, of Honeywell Service Bulletin TPE331-72-2190, Revision 0, dated December 21, 2011. Part re-identification is required only if rework is done.
Honeywell TPE331 Propeller Pitch Control Lever letter, dated August 26, 2011, to the original equipment manufacturer, contains information related to this subject.
(1) The Manager, Fort Worth ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (i)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Justin Carter, Aviation Safety Engineer, Fort Worth ACO Branch, FAA, 10101 Hillwood Parkway, Fort Worth, TX 76177; phone: (817) 222-5146; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (j)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Honeywell Service Bulletin TPE331-72-2190, Revision 0, dated December 21, 2011.
(ii) [Reserved]
(3) For service information identified in this AD, contact Honeywell International, Inc., 111 South 34th Street, Phoenix, AZ 85034; phone: (800) 601-3099; website:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
Office of Elementary and Secondary Education, Department of Education.
Proposed priorities, requirements, and definitions.
The Department of Education (Department) proposes priorities, requirements, and definitions under the State Tribal Education Partnership (STEP) program, Assistance Listing Number (ALN) 84.415A. The Department may use one or more of these priorities, requirements, and definitions for competitions in fiscal year (FY) 2023 and later years. The Department is taking this action to support the development of partnerships among Tribal education agencies (TEAs), State educational agencies (SEAs), and local educational agencies (LEAs) to support the creation or expansion of TEAs to directly administer education programs, including formula grant programs under the Elementary and Secondary Education Act of 1965, as amended (ESEA), consistent with State law and under a written agreement among the parties.
We must receive your comments on or before January 27, 2023.
Comments must be submitted via the Federal eRulemaking Portal at
Donna Bussell, U.S. Department of Education, 400 Maryland Avenue SW, Room 3W207, Washington, DC 20202-6450. Telephone (202) 987-0204. 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.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, and definitions. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect public comments about the proposed priorities, requirements, and definitions by accessing
First, the Department requested input on the length of grant performance periods, specifically if Tribal Nations were interested in longer grant performance periods (
Second, the Department requested input on whether Tribal Nations are more interested in working partnerships with SEAs or LEAs. The majority of Tribal leader comments expressed the perspective that those partnerships should include both SEAs and LEAs and should be rooted in Tribal consultation at the local level. Tribal leaders also supported the need for partnerships to include both entities. In response to the comments, the Department is proposing Priority 3 to enhance Tribal consultation at the local level and encourage trilateral working relationships among TEAs, SEAs, and LEAs.
Third, the Department requested input from Tribal Nations on whether resources should be targeted toward coordinating staff, curriculum, or other existing grant opportunities. The majority of Tribal leader input expressed the need to coordinate curriculum development and existing grant opportunities. Other participants supported targeting grant resources to
Fourth, the Department requested Tribal Nations to identify the supports needed to create a new TEA. The majority of Tribal leader input expressed the need to identify and expand Tribal services and to identify off-reservation students. Other participants expressed that all Tribal Nations need to finance a new TEA with Tribal funding and consolidate education-related services into one agency. In response to the comments, the Department is proposing Priority 1 to improve visibility and identification of Indian children and youth in public education data.
Fifth, the Department requested input from Tribal Nations on whether developing Tribal education regulatory codes is necessary for creating a TEA. The majority of Tribal leader input expressed that Tribal education codes are not necessary to create a new TEA. Other participants expressed interest in seeing examples of Tribal education codes. In response to the comments, the Department is proposing to not include Tribal education codes for the creation of a “new TEA”. Education codes are still included in the definition of an “established TEA” in this document. Examples of Tribal education codes may be shared during pre-application technical assistance webinars.
Sixth, the Department requested input from Tribal Nations on whether creating a new TEA required more than a one-year performance period. The majority of Tribal leader input expressed that creating a new TEA requires more than one year and may take anywhere from two to three years. In response to the comments, the Department will factor in this Tribal leader input during the development of future notices inviting applications to the degree permissible by law.
Seventh, the Department requested input from Tribal Nations on whether there should be requirements, in addition to those in past competitions, for future STEP grants to create a TEA. The majority of Tribal leaders expressed the need for projects to include a comprehensive plan to implement non-direct services. The plan should align with Tribal needs and priorities. Other participants expressed that applicants or grantees, as appropriate, should be required to assess educational infrastructure needs, evaluate SEA and LEA training and other services provided to the TEA, and improve access to professional development opportunities for TEA leaders. In response to the comments, the Department will factor in this Tribal leader input during the development of future competitions to the degree permissible by law.
Eighth, the Department requested input from Tribal Nations on how to define “capacity building” as it relates to expanding or creating a TEA. The majority of Tribal leaders expressed that the definition needs to be specified in the final agreement with the SEA and LEA. Other participants recommended that the Department define “capacity building” as the ability to authorize teaching certifications. The Department has addressed the input on capacity building by including authorization of teaching certifications as one of the criteria within the definition of “established TEA” in this document.
Ninth, the Department requested input from Tribal Nations on whether they are interested in collaborating with SEAs to develop, monitor, and evaluate effective culturally responsive practices. No Tribal leaders or other participants provided input on the question.
Tenth, the Department requested input from Tribal Nations on whether they are interested in collaborating with LEAs to develop, monitor, and evaluate effective culturally responsive practices. The majority of Tribal leader input and other participants were in favor of TEAs and LEAs working together in this way. Tribal leader input expressed that TEAs should work with at least three LEAs that are required to engage in local Tribal consultation as described in section 8538(a) of the ESEA. In response to the comments, the Department is proposing Priority 3 to encourage more frequent consultation between an affected LEA and TEA. The Department is not requiring consultation with at least three LEAs due to the likelihood that a TEA may not have the capacity to maintain an ongoing relationship with three LEAs who meet the definition of “Affected LEA” in this document.
Eleventh, the Department requested input from Tribal Nations on whether training from the SEA to the TEA should be targeted toward data collection and analysis; grants management and monitoring; fiscal accountability; and/or other training needs. Tribal leaders were asked to prioritize by rank order. The majority of Tribal leader input expressed the need for focused training on data collection, data analysis, grants management, and monitoring, in that order. Other participants were in favor of more training regarding fiscal accountability. In response to the comments, the Department will factor in the need for training regarding data collection and analysis, grants management, and monitoring. In addition, proposed Priority 1, which is designed to address the under-identification of Indian students in public education data, reflects the importance of data collection and analysis for STEP projects. Through projects that address proposed Priority 1, Tribal Nations that want to exercise more self-determination in public education could assist LEAs in the improvement of data collection and analysis with a specific focus on improved identification of Indian students.
Twelfth, the Department requested input from Tribal Nations regarding which priorities should be considered in the next competition. Tribal leaders expressed that STEP grants should advance and support local Tribal consultation practices, especially for TEAs that have at least three LEAs required to conduct local Tribal consultation under ESEA section 8538(a). Other participants indicated that future priorities should include support for Tribal Nations to authorize Tribal schools. In response to the comments, the Department does not propose a priority specifically for authorizing tribal schools, however, it does continue to support the creation of new TEAs which may include Tribal schools. The Department proposes Priority 4 for Tribal Nations that have not received a STEP grant from the Department. Additionally, the Department proposes Priority 3 to have STEP grants support local Tribal consultation practices.
This document contains the following seven proposed priorities:
Additionally, under section 6132(c)(1) and (2) of the ESEA, the Department has authority to give priority to applicants that propose to create a new TEA or that propose to expand an existing TEA. Under proposed Priorities 5, 6, and 7, the Department prioritizes projects that create “new TEAs,” expand capacity of “early TEAs,” and expand capacity of “established TEAs” to help ensure Tribal Nations have options to equitably advance Tribal self-determination.
To meet this priority, an applicant must propose to partner with an LEA to develop and maintain effective and culturally responsive methods to better identify, and support the identification of, Indian students who may be undercounted or under-identified as eligible for an ESEA title VI formula grant program consistent with section 6112 of the ESEA. This includes identifying Indian students who are not enrolled in a Tribal Nation but who have affiliation with or descendance from a Tribal Nation as described in ESEA section 6117(d).
To meet this priority, an applicant must submit a high-quality plan that describes how it will strengthen its partnership with the LEA and/or SEA, to strengthen coordination among all existing federally funded Indian education grants that impact the partner LEA and/or SEA to support the academic achievement of Indian students. The plan must include goals, milestones, and timelines for coordination, and must identify which existing federally funded programs they are coordinating.
Projects to improve upon existing local Tribal consultation efforts with at least one LEA. To meet this priority, applicants must provide a high-quality plan that describes how the project will increase the frequency of consultations with affected LEAs, meaningfully develop consultation procedures with LEAs, and meet SEA goals as defined in the respective ESEA Consolidated State and Local Plans.
To meet this priority, an applicant must be a new TEA or early TEA and must not have previously received a STEP award from the Department.
To meet this priority, an applicant must not be an early TEA or established TEA.
To meet this priority, an applicant must be an early TEA.
To meet this priority, an applicant must be an established TEA.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
An applicant must provide a Draft Written Agreement (DWA), with the appropriate SEA and/or LEA partner(s). For applicants creating a new TEA, a DWA is only required with an LEA. For applicants expanding capacity for an early TEA or established TEA, a DWA with both an SEA and LEA is required.
The second program requirement is to ensure the applicant and its SEA and
In any competition, the Department could use one or more of the proposed program requirements in addition to statutory program requirements under section 6132 of the ESEA. The proposed program requirements are:
Grantees must hire a project director as soon as practicable, but no later than 60 days after the beginning of the performance period.
Grantees must submit a final written agreement signed by all parties entering into the agreement within 120 days after receiving the grant award notification.
Specifically, the Department is proposing the definition of “directly administer,” which is based on the definition in section 8538 of the ESEA, to advance the ability of TEAs to exercise Tribal self-determination in public education. Section 6132(c)(2)(A) of the ESEA requires directly administering education programs including formula grant programs under the ESEA consistent with State law and written agreements between parties but does not define this term. To clarify responsibilities under this statutory program requirement, the Department proposes to define “directly administer.” Direct administration enables TEAs to become the fiscal agents and subsequently become financially responsible for the administration of project objectives, funds, and reporting.
The Department derived its proposed definition of TEA from ESEA section 6132. However, we propose to expand the definition of TEA to include a TEA that includes an agency, department, or instrumentality of more than one Tribe if the Tribes are in close geographic proximity or have cultural connections to each other and agree through joint Tribal government resolution to have a combined TEA. The proposed change is responding to the request from Tribal leaders to award grants through a non-competitive process. This will allow Tribes with minimal capacity to advance common interests and promote Tribal self-determination in public education.
The Department proposes to further define “established TEA” and “early TEA” to meaningfully differentiate between STEP projects that propose to create a new TEA versus expanding an early TEA or expanding an established TEA. The rationale behind the cutoffs were to quantifiably differentiate while making grants more accessible to TEAs in early stages of development. The definitions are intended to help applicants better identify the priority that applies to their proposed project.
The Department proposes to define “Tribal consultation” to clarify the purpose of the consultation, the roles and responsibilities of all parties, and the need to acquire Tribal affirmation that the consultation has been conducted in accordance with the requirements. The written affirmation would ensure that the appropriate Tribal Nations were participating partners. The Department proposes to define “Affected LEA,” which is based on the definition in section 8538 of the ESEA.
In any competition, the Department could use one or more of these proposed definitions in addition to any statutory definitions. The proposed definitions are:
(1) With an enrollment of American Indian or Alaska Native students that is not less than 50 percent of the total enrollment of the local educational agency; or
(2) For any fiscal year following fiscal year 2017, that received a grant in the previous fiscal year under subpart 1 of part A of title VI that exceeded $40,000.
(1) The roles and responsibilities for each partner.
(2) An agreed-upon list of deliverables (Note: deliverables cannot be direct services to Indian students).
(3) Identification of at least one point of contact for each partner.
(4) A description of the resources each partner will contribute to the project (Note: resources do not need to be monetary or matching funds).
(1) Has received a STEP grant in 2012 or subsequent years, or has an existing prior relationship with an SEA or LEA as evidenced by an FWA between the TEA and SEA or LEA.
(2) Has an existing Tribal education code.
(3) Has directly administered at least one education program within the past five years.
(4) Has administered at least one Federal, State, local, or private grant within the past five years.
(5) Has authorized teaching certifications.
(1) The SEA or LEA provides Tribes the opportunity for input;
(2) The SEA or LEA consider and respond to the input from Tribal leaders or their officially designated proxies regarding an education program that affects the Tribal Nation or TEA; and
(3) The partner Tribal Nation provides written confirmation that the consultation was meaningful and in good faith.
Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select 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 the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing the proposed priorities, requirements, and definitions only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential benefits of this regulatory action are the increased specificity of application requirements, program requirements, and definitions that will support effective program implementation that advances Tribal self-determination between TEAs, SEAs, and LEAs. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities. The proposed priorities, requirements, and definitions would impose minimal costs on entities that would receive assistance through the STEP program. Application submission and participation in the STEP program is voluntary. The Secretary believes that the costs imposed on applicants by the proposed priorities, requirements, and definitions would be limited to paperwork burden related to preparing an application for the STEP program. Because the costs of carrying out activities would be paid for with STEP program funds, the costs of implementation would not be a burden for any eligible applicants, including small entities.
Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed priorities, requirements, and definitions, easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections?
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the
The proposed priorities, requirements, and definitions contain information collection requirements that are approved by OMB under OMB control number 1894-0006; the proposed priorities, requirements, and definitions do not affect the currently approved data collection.
The Secretary certifies that this proposed regulatory action would not have a substantial economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.
Although some of the Alaska Native Organizations, LEAs, and other entities that receive STEP program funds qualify as small entities under this definition, the proposed priorities, definitions, and requirements would not have a significant economic impact on these small entities. The Department believes that the costs imposed on an applicant by the proposed priorities, requirements, and definitions would be limited to the costs related to providing the documentation outlined in the proposed priorities, definitions, and requirements when preparing an application and that those costs would not be significant. Participation in the STEP program is voluntary. We expect that in determining whether to apply for STEP funds, an eligible entity would evaluate the requirements of preparing an application and any associated costs and weigh them against the benefits likely to be achieved by receiving a STEP grant. An eligible entity will probably apply only if it determines that the likely benefits exceed the costs of preparing an application.
We invite comments from small entities as to whether they believe the proposed priorities, requirements, and definitions would have a significant economic impact on them and, if so, we request evidence to support that belief.
You may also access documents of the Department published in the
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of Georgia, through the Georgia Environmental Protection Division (EPD), via a letter dated October 20, 2021. The SIP revision includes a Limited Maintenance Plan (LMP) for the Macon 1997 8-hour ozone national ambient air quality standards (NAAQS) maintenance area (hereinafter referred to as the Macon 1997 8-hour Ozone NAAQS Area or Macon Area or Area). The Macon 1997 8-hour Ozone NAAQS Area consists of all of Bibb County and a portion of Monroe County located in middle Georgia. EPA is proposing to approve the Macon Area LMP because it provides for the maintenance of the 1997 8-hour ozone NAAQS within the Area through the end of the second 10-year portion of the maintenance period. The effect of this action would be to make certain commitments related to maintenance of the 1997 8-hour ozone NAAQS in the Macon Area federally enforceable as part of the Georgia SIP.
Comments must be received on or before January 27, 2023.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2022-0203 at
Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. The telephone number is (404)
In accordance with the Clean Air Act (CAA or Act), EPA is proposing to approve the Macon Area LMP for the 1997 8-hour ozone NAAQS, which was adopted by Georgia EPD on October 12, 2021, and submitted to EPA as a revision to the Georgia SIP under a letter dated October 20, 2021.
Ground-level ozone is formed when oxides of nitrogen (NO
Ozone exposure also has been associated with increased susceptibility to respiratory infections, increased medication use, doctor visits, and emergency department visits, and increased hospital admissions for individuals with lung disease. Children are at increased risk from exposure to ozone because their lungs are still developing and they are more likely to be active outdoors, which increases their exposure.
In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period.
Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004, EPA designated the Macon 1997 8-hour Ozone NAAQS Area, which consists of all of Bibb County and a portion of Monroe County in Georgia, as nonattainment for the 1997 8-hour ozone NAAQS. The designation became effective on June 15, 2004.
EPA has revised the ozone NAAQS twice since the 1997 standards were finalized. On July 20, 2012, EPA designated areas as unclassifiable/attainment or nonattainment for the 2008 8-hour ozone NAAQS. The Macon Area was designated as attainment for that standard with an effective date of July 20, 2012.
A state may submit a request to redesignate a nonattainment area that is attaining a NAAQS to attainment, and, if the area has met the criteria described in section 107(d)(3)(E) of the CAA, EPA may approve the redesignation request.
EPA has published long-standing guidance for states on developing maintenance plans, beginning with a 1992 memo referred to as the Calcagni memo. The Calcagni memo
EPA has interpreted CAA section 175A as permitting the LMP option because section 175A of the Act does not define how areas may demonstrate maintenance, and in EPA's experience implementing the various NAAQS, areas that qualify for an LMP and have approved LMPs have rarely, if ever, experienced subsequent violations of the NAAQS. As noted in the LMP guidance memoranda, states seeking an LMP must still submit the other maintenance plan elements outlined in the Calcagni memo, including an attainment emissions inventory, provisions for the continued operation of the ambient air quality monitoring network, verification of continued attainment, and a contingency plan in the event of a future violation of the NAAQS. Moreover, a state seeking an LMP must still submit its section 175A maintenance plan as a revision to its SIP, with all attendant notice and comment procedures. While the LMP guidance memoranda were originally written with respect to certain NAAQS,
EPA is proposing to approve the Macon LMP because Georgia has made a showing, consistent with EPA's prior LMP guidance, that the Macon 1997 8-hour Ozone NAAQS Area's ozone concentrations are well below the 1997 8-hour ozone NAAQS and have been historically stable and that the State has met the other maintenance plan requirements. Georgia EPD submitted this LMP for the Macon Area to fulfill the CAA's second maintenance plan requirement. EPA's evaluation of the Macon Area LMP is presented in section IV below.
In June 2007, Georgia EPD submitted to EPA a request to redesignate the Macon 1997 8-hour Ozone NAAQS Area to attainment for the 1997 8-hour ozone NAAQS. This submittal contained a plan, for inclusion in the Georgia SIP, to provide for maintenance of the 1997 8-hour ozone NAAQS in the Macon 1997 8-hour Ozone NAAQS Area through 2018. EPA approved Georgia's Macon 1997 8-hour Ozone NAAQS Area maintenance plan and the State's request to redesignate the Area to attainment for the 1997 8-hour ozone NAAQS effective October 19, 2007.
Section 175A(b) of the CAA requires states to submit a revision to the first maintenance plan eight years after redesignation to provide for maintenance of the NAAQS for ten additional years following the end of the first 10-year period. However, EPA's final implementation rule for the 2008 8-hour ozone NAAQS revoked the 1997 8-hour ozone NAAQS and stated that one result of the revocation was that areas that had been redesignated to attainment (
In recognition of the continuing record of air quality monitoring data showing ambient 8-hour ozone concentrations in the Macon 1997 8-hour Ozone NAAQS Area well below the 1997 8-hour ozone NAAQS, Georgia EPD chose the LMP option for the development of its second 1997 8-hour ozone NAAQS maintenance plan for the Macon Area. On October 20, 2021, Georgia EPD adopted this second 10-year 1997 8-hour ozone maintenance plan, and subsequently submitted the Macon LMP to EPA as a revision to the Georgia SIP.
Georgia's October 20, 2021, submittal includes the LMP, air quality data, a summary of the previous emissions inventory and a conclusion regarding future emission levels, and attachments, as well as certification of adoption of the plan by Georgia EPD. Attachments to the plan include documentation of notice, opportunity for hearing and public participation prior to adoption of the plan by Georgia EPD on October 20, 2021, and state legal authority. The LMP notes that Georgia's LMP submittal for the remainder of the 20-year maintenance period for the Macon Area is in response to the D.C. Circuit's decision overturning aspects of EPA's implementation rule for the 2008 8-hour ozone NAAQS. The Macon Area LMP does not include any additional emissions reduction measures but relies on the same emissions reduction strategy as the first 10-year maintenance plan that provides for the maintenance of the 1997 8-hour ozone NAAQS through 2018. Prevention of significant deterioration (PSD) requirements and control measures contained in the SIP will continue to apply, and federal measures (
EPA has reviewed the Macon Area LMP, which is designed to maintain the 1997 8-hour ozone NAAQS within the Macon Area through the end of the 20-year period beyond redesignation, as required under CAA section 175A(b). The following is a more detailed
For maintenance plans, a state should develop a comprehensive, accurate inventory of actual emissions for an attainment year to identify the level of emissions which is sufficient to maintain the NAAQS. A state should develop this inventory consistent with EPA's most recent guidance on emissions inventory development. For ozone, the inventory should be based on typical summer day emissions of VOC and NO
The Attainment Emissions Inventory section of the Macon Area LMP describes the methods, models, and assumptions used to develop the attainment inventory and notes that Georgia EPD relied on version 2 of the 2014 NEI.
Based on our review of the methods, models, and assumptions used by Georgia to develop the inventory, EPA proposes to find that the Macon 1997 ozone NAAQS LMP includes a comprehensive, reasonably accurate inventory of actual ozone precursor emissions in attainment year 2014 and proposes to conclude that this is acceptable for the purposes of a subsequent maintenance plan under CAA section 175A(b).
The maintenance demonstration requirement is satisfied in a LMP if the state can provide sufficient weight of evidence indicating that air quality in the area is well below the level of the NAAQS, that past air quality trends have been shown to be stable, and that the probability of the area experiencing a violation over the second 10-year maintenance period is low.
To attain the 1997 8-hour ozone NAAQS, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations (design value) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the NAAQS is attained if the design value is 0.084 ppm or below. EPA evaluated quality assured and certified 2018-2020 monitoring data (which was the most recent quality assured and certified data at the time of submission) and determined that the design value for the Macon Area was 0.061 ppm, or 73 percent of the level of the 1997 8-hour ozone NAAQS, as measured at the Macon-Forestry monitor located in Bibb County, Georgia (AQS ID: 13-021-0012). Based on
Table 3 presents the design values for the monitor in the Macon Area over the 2010-2021 period. As shown, the site has been below the level of the 1997 8-hour ozone NAAQS during this time, and the most current design value is below the level of 85 percent of the NAAQS, consistent with prior LMP guidance.
Therefore, the Macon Area is eligible for the LMP option, and EPA proposes to find that the long record of monitored ozone concentrations that attain the NAAQS, together with the continuation of existing VOC and NO
As discussed above, the Macon Area has maintained air quality below the 1997 8-hour ozone NAAQS over the past fifteen design values.
EPA periodically reviews the ozone monitoring networks operated and maintained by the states in accordance with 40 CFR part 58. The network plans, which are submitted annually to EPA, are consistent with the ambient air quality monitoring network assessment. It is important to note that the Macon Area was designated nonattainment due to ozone concentrations at the monitor located at Macon-Forestry.
To verify the attainment status of the Area over the maintenance period, the maintenance plan should contain provisions for continued operation of an appropriate, EPA-approved monitoring network in accordance with 40 CFR part 58. As noted above, Georgia's 2021 Annual Network Plan, which covers the monitor within the Macon Area, has been approved by EPA in accordance with 40 CFR part 58, and Georgia has committed to continue operating of this monitor and to consulting with EPA prior to making changes to it. The State also acknowledges the obligation to meet monitoring requirements in compliance with 40 CFR part 58.
Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions. The purpose of such contingency provisions is to
The Macon Area LMP contingency plan includes tracking and triggering mechanisms to determine when control measures are needed, and a process for developing and adopting appropriate control measures. There are two potential triggers for the contingency plan. The Tier I trigger will be any 8-hour ozone monitoring reading exceeding 84 ppb at the ambient monitoring station located within the Macon Area or periodic emissions inventory updates
EPA proposes to find that the Macon Area LMP for the 1997 8-hour ozone NAAQS includes an approvable update of various elements of the initial EPA-approved maintenance plan for the 1997 8-hour ozone NAAQS. EPA also proposes to find that the Macon Area qualifies for the LMP option and adequately demonstrates maintenance of the 1997 8-hour ozone NAAQS through the documentation of monitoring data showing maximum 1997 8-hour ozone levels well below the NAAQS and historically stable design values.
EPA believes the Macon Area LMP, which retains existing control measures in the SIP, is sufficient to provide for maintenance of the 1997 8-hour ozone NAAQS in the Macon Area over the second maintenance period (
Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS.
Under the conformity rule, LMP areas may demonstrate conformity without a regional emissions analysis.
However, because LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs, and projects. Specifically, for such determinations, RTPs, TIPs, and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108) and meet the criteria for consultation (40 CFR 93.105) and Transportation Control Measure implementation in the conformity rule provisions (40 CFR 93.113) as well as meet the hot-spot requirements for projects (40 CFR 93.116).
Under sections 110(k) and 175A of the CAA and for the reasons set forth above, EPA is proposing to approve the Macon Area LMP for the 1997 8-hour ozone NAAQS, submitted by Georgia EPD on October 20, 2021, as a revision to the Georgia SIP. EPA is proposing to approve the Macon Area LMP because it includes an acceptable update of various elements of the 1997 8-hour ozone NAAQS maintenance plan approved by EPA for the first 10-year
EPA also finds that the Macon Area qualifies for the LMP option and that the Macon Area LMP adequately demonstrates maintenance of the 1997 8-hour ozone NAAQS through documentation of monitoring data showing maximum 1997 8-hour ozone levels well below the NAAQS and continuation of existing control measures. EPA believes the Macon Area's 1997 8-Hour Ozone LMP to be sufficient to provide for maintenance of the 1997 8-hour ozone NAAQS in the Macon Area over the second 10-year maintenance period, through 2027, and thereby satisfies the requirements for such a plan under CAA section 175A(b).
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 action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental Protection, Air Pollution Control, Incorporation by reference, Intergovernmental Relations, Nitrogen Oxides, Ozone, Reporting and Recordkeeping Requirements, Volatile Organic Compounds.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would add species or groups of species to the Seafood Import Monitoring Program (SIMP) established pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). In addition, this proposed rule would amend SIMP regulations to clarify the responsibilities of the importer of record; amend the definition of importer of record to more closely align with the U.S. Customs and Border Protection (CBP) definition; amend the language requiring chain of custody records to be made available for audit or inspection to add a requirement that such records be made available through digital means if requested by NMFS; clarify the Aggregated Harvest Report criteria; and clarify the application of SIMP requirements to imports into the Pacific Insular Areas.
Written comments on the proposed rule must be received on or before March 28, 2023.
You may submit comments on this document, identified by NOAA-NMFS-2022-0119, by any of the following methods:
The draft Regulatory Impact Review and Initial Regulatory Flexibility Assessment supplementing this proposed rule are available on
Rachael Confair, Office of International Affairs, Trade, and Commerce, National
NMFS issued a final rule on December 9, 2016, to establish the Seafood Traceability Program, also known as the Seafood Import Monitoring Program (SIMP)(
Although 13 species and species groups were initially identified for inclusion in SIMP, application of SIMP requirements to shrimp and abalone was stayed through regulation because gaps existed in the collection of traceability information for domestic aquaculture-raised shrimp and abalone, which is currently largely regulated at the state level. On April 24, 2018 (83 FR 17762), NMFS issued a rule for a domestic program for comparable traceability requirements as directed under the Consolidated Appropriations Act of 2018 (Pub. L. 115-141). Subsequently, NMFS lifted the stay on shrimp and abalone on May 24, 2018. SIMP requirements have been in effect for all initial thirteen species and species groups since December 31, 2018.
The 13 species and species groups were identified based on principles for determining seafood species at risk of IUU fishing and seafood fraud (at-risk species). On behalf of the National Ocean Council Committee on IUU Fishing and Seafood Fraud, NMFS issued draft principles and a draft list of at-risk species, solicited and considered public comment, then issued the final principles (listed below) and final list of priority (at-risk) species. See 80 FR 66867 (October 30, 2015) (providing finalized principles and a list of priority species developed using the principles). As part of this process, an interagency expert working group reviewed public comments and confidential enforcement information and developed the draft list of priority species, then reviewed further public comment prior to publication of the final list of thirteen species. See 81 FR 88975, 88978 (December 9, 2016). The seven final principles are:
NMFS now seeks to expand SIMP to include additional species and species groups. In June 2022, the White House issued a National Security Memorandum on Combating Illegal, Unreported, and Unregulated Fishing and Associated Labor Abuses (NSM-11, June 27, 2022), directing NOAA to initiate a rulemaking by the end of 2022, to expand SIMP to include additional species or species groups, as appropriate, to combat IUU fishing and seafood fraud. NSM-11 at Section 5(a).
In December 2020, the U.S. House of Representatives passed the 2021 Consolidated Appropriations Bill (H.R. 7667), which included an accompanying report for NOAA to develop a priority list of other species for inclusion in SIMP in order to: (1) reduce human trafficking in the international seafood supply chain; (2) reduce economic harm to the American fishing industry; (3) preserve stocks of at-risk species around the world; and (4) protect American consumers from seafood fraud. Although H.R. 7667 was not adopted into law, NOAA nevertheless published a Report to Congress in March 2022 titled “Developing a Priority List of Species for Consideration under the Seafood Import Monitoring Program” in response to House Report 116-455. The March 2022 Report to Congress referred to the list above as “criteria,” but during the development of this proposed rule, the agency decided that they are more appropriately characterized as “goals.” NMFS considered the four goals in its accompanying report when reviewing potential species and species groups for inclusion in SIMP.
NOAA's approach to this proposed rule continues to be built on the original seven principles for identifying species at risk of IUU fishing and seafood fraud under SIMP, given the objective of and authority for the program. Seafood fraud and reducing economic harm to the American fishing industry (goals 2 and
Countering forced labor and other labor abuses in the seafood supply chain (goal 1) is an agency priority and NMFS will consider such concerns when reviewing potential species for inclusion. However, labor-abuse concerns alone will not be used as a basis for identifying species. See SIMP final rule (81 FR 88975, December 9, 2016) (explaining in response to comment 11 that, while forced labor and unfair labor practices are important issues in several fisheries and in the fish processing sector, the objective of the program is to trace seafood products from the point of entry into U.S. commerce back to the point of harvest or production for the purpose of ensuring that illegally harvested or falsely represented seafood does not enter U.S. commerce). NMFS will continue to provide information collected under SIMP to Federal agency partners, consistent with MSA data confidentiality provisions (16 U.S.C. 1881a(b)) and other Federal law, to aid in the investigation or prosecution of labor crimes and to support those agencies, through interagency groups and other actions, in efforts to address forced labor and other labor abuses.
As explained in the March 2022 Report to Congress, NMFS relies on reports and information from Federal partner agencies on forced labor, human trafficking, and child labor abuses in the seafood industry. Based on cross-referencing such information with information on Country of Origin of U.S. seafood imports, shrimp and tuna (Albacore, Bigeye, Bluefin, Skipjack and Yellowfin) are the most predominant species that are entering U.S. markets and that are vulnerable to forced labor in the supply chain. Both species groups are already included in SIMP, but this proposed rule would add other tuna species to the program.
In the March 2022 Report to Congress, NMFS described “preserv[ing] stocks of at-risk species” (goal 3 in House Report 116-455) as including: threatened or endangered species affected by IUU fishing, species being overharvested due to fishing pressure, and/or species protected under legislation due to population decline. Conservation and management of living marine resources is a core NMFS mandate. When reviewing potential species for inclusion in SIMP, NMFS will indicate if any of the above labor abuse concerns are raised, but will not use these concerns as a basis for adding species to SIMP.
In addition to its evaluation of priority species, NMFS reviewed the efficacy of the program's reporting and recordkeeping requirements and identified opportunities to refine the descriptions and requirements of certain data elements that International Fisheries Trade Permit (IFTP) holders are required to report, thus clarifying and standardizing information entered into the Automated Commercial Environment (ACE) for imports subject to SIMP. NMFS intends to clarify the small-scale harvest criteria for the Aggregated Harvest Report in this proposed rule. For other data elements, NMFS intends to provide further guidance to the seafood industry and trade community by updating its Implementation Guide that outlines the entry filing process for the Partner Government Agenda Message Set. NMFS is updating the Implementation Guide based on feedback and questions NMFS received from the seafood industry and trade community through the SIMP support email and phone line, and lessons gleaned from SIMP audits. The current Implementation Guide is available online at
In addition to the proposed changes, NMFS is seeking comments on whether to consider a standardized “SIMP Form” that would build on the current sample model forms to create a required document that encompasses all traceability elements required under the program. Through program implementation, seafood industry stakeholders have requested a standardized form for use in lieu of the optional model forms. During the initial development of SIMP, the working group decided against inclusion of a standard form due to potential duplication with existing forms, especially those required by Regional Fisheries Management Organizations (RFMOs). In revisiting this decision, NMFS will be mindful of other forms that are required by RFMOs or applicable United States programs (
This proposed rule would amend SIMP regulations to clarify current provisions and add a requirement that importers of record provide chain of custody documentation through digital means upon request. NMFS proposes to amend the International Fisheries Trade Permit (IFTP) regulations (50 CFR 300.322) to clarify that the importer of record on the Customs entry filing and the IFTP holder must be the same entity. Customs and Border Protection defines “importer of record” under 19 U.S.C. 1484 (Section 484, Tariff Act of 1930 as amended) as the owner, purchaser, or licensed Customs broker (CBP, 2001). A foreign entity, without a United States business presence, must have a U.S. resident agent (as defined in Customs regulations 19 CFR 141.18) that must serve as the importer of record and hold the IFTP, and that is responsible for compliance with all SIMP requirements. SIMP audits have revealed that, in many cases, a third party (
NMFS proposes to revise the IFTP regulations at § 300.324(d) to clarify that paper or electronic copies of all chain of custody documentation required under this subpart, and all supporting records upon which an entry filing or export declaration is made, must be maintained by the importer of record or the exporting principal party in interest as applicable, and made available for inspection, at the importer's/exporter's place of business for a period of two years from the date of the import, export, or re-export. Such records must be made available to NMFS upon request. These records can be provided in electronic format (within five days from receipt of the agency's request or audit notification) or paper format (within ten days from receipt of the record request or audit notification), or unless otherwise specified by NMFS. The importer's permit status will be verified electronically through the U.S. Customs ACE as part of the normal entry filing. The proposed revisions clarify that supply chain records to support may be stored, retrieved and
In addition, this proposed rule would clarify that product coming into the Pacific Insular Area as defined in the MSA (16 U.S.C. 1802(35)) would be subject to all requirements of this section except those requiring (ACE) filing. When product is moved from the Pacific Insular Area to any place within the customs territory of the United States, all requirements would apply.
In its March 2022 Report to Congress, NMFS stated that it was evaluating the 13 current SIMP species or species groups (collectively, referred to as “species”), other species previously evaluated but not included in SIMP, and new species that were among the top 50 seafood imports in 2020 (by volume or value) and/or for which there were reports related to IUU fishing and seafood fraud risk. The current 13 species are Abalone (
NMFS evaluated the above species using the seven original principles and built on the 2015 review with insights gleaned from SIMP audits and enforcement actions, supplemented by publicly available information on relevant Federal agency actions (
NMFS notes that the SIMP regulations focus on data necessary to establish traceability from point of harvest or production to entry into U.S. commerce for imported fish and fish products. For species currently under SIMP, equivalent information is being collected at the point of entry into U.S. commerce for the products of U.S. domestic fisheries and aquaculture facilities pursuant to various Federal and/or state fishery management and reporting programs. Given that, there was no need to duplicate such requirements in the SIMP regulations. See 81 FR 88975, 88976 (responding to comment 2 on U.S. obligations under international trade agreements, in particular, with respect to national treatment). NMFS plans to follow the same approach in the current rulemaking, and thus is reviewing whether equivalent information is being collected for species proposed to be added to SIMP that are the products of U.S. domestic fisheries or aquaculture facilities. If there are gaps in collection of traceability information for domestic products that may affect the timing for inclusion of certain species under SIMP or affect whether certain species can be included.
NMFS is proposing to expand SIMP to include the following five species and species groups and expand two species groups already represented in SIMP. The estimated number of three-alpha species codes as classified by the United Nations Food and Agriculture Organization's Aquatic Sciences and Fisheries Information System (ASFIS) and Harmonized Tariff Schedule (HTS) codes that are associated with the proposed species are provided below.
NMFS also solicits public comment on the principles identified for inclusion of a species, information supporting or not supporting application of a principle to a species, economic or other impacts of including a species in SIMP, information on whether equivalent information is being collected for proposed species that are the products of U.S. domestic fisheries, or comments on any other aspects of this proposed rule.
NMFS proposes to expand the SIMP priority species list to include all species in the Snapper (Lutjanidae) family. “Unspecified snapper species” is one of the top 50 seafood products imported into the United States. The United States imported an estimated 24,581 mt (valued at $215M) of Lutjanidae species in 2021. Mexico, Brazil, Panama, and Nicaragua (in descending order) account for the majority of snapper imported into the United States by both volume and value. Northern Red Snapper (
NMFS has particular concern about the potential to mislabel Northern Red Snapper as another snapper species that is not subject to reporting and recordkeeping requirements. Snapper has been identified in multiple public reports as commonly mislabeled (Canadian Food Inspection Agency, 2021; FDA, 2021; Leahy, 2021; Wallstrom
As noted above, illegal fishing for snapper species by Mexican
SIMP currently includes five general species of tunas (albacore, bigeye, bluefin, skipjack, and yellowfin) due to a history of fishing violations, transshipment and complex supply chains, lack of a complete documentation scheme (even across various reporting and management mechanisms), and substitution history (80 FR 66867, October, 30, 2015). Tuna species are highly regulated domestically and internationally, and in some cases are already subject to tracking or catch documentation. However, due to the high volume and high value of most tuna species, existing enforcement capabilities remain insufficient, as reflected in continued reports of IUU fishing. NMFS believes all of the above issues are still present today, thus the currently listed tuna species should remain in SIMP. Based on concerns about illegal fishing, misrepresentation, and species misreporting in the supply chains from multiple nations, this proposed rule would expand the tuna species group under SIMP to include the following: slender tuna (
In 2021, the United States imported approximately 269,845 mt (valued at $1.8B) of the tuna species currently covered under SIMP, as well as about 16,943 mt ($54M) of additional tuna species proposed. Thailand, Vietnam, and Indonesia account for the majority of U.S. tuna imports currently covered under SIMP. Vietnam, the People's Republic of China, and Thailand account for the majority of imports of the proposed additional tuna species. Tuna is in the top 50 seafood imports for the United States. Inclusion of the expanded tuna species group would add approximately eight HTS codes and 27 ASFIS three-alpha species codes (depending on scope) to SIMP.
With regard to illegal fishing, NMFS identified three vessels harvesting unspecified tuna and bycatch species in the 2020 Notice of Foreign Fishing Vessels presumed to have engaged in IUU fishing (CSMS #43272528), an alert to the U.S. trade community that products harvested by these vessels are prohibited from entry and/or subject to seizure/forfeiture under 16 U.S.C. 1857(1)(Q). All three vessels were operating within the International Commission for the Conservation of Atlantic Tunas (ICCAT) Area and identified as
In a nationwide operation in 2019, in cooperation with CBP and FDA, NMFS found that importers misidentified some consignments of tuna in the entry filing as bonito, which has significantly lower tariff rates. In addition to NMFS actions, CBP identified 32 companies
The FDA Seafood List accepts “tuna” as the market name for 15 species, eight of which do not require SIMP data reporting (
As noted earlier, tuna (Albacore, Bigeye, Bluefin, Skipjack and Yellowfin) and shrimp are the U.S. seafood imports most vulnerable to forced labor. In 2019, 2020, 2021, and 2022, CBP has issued six Withhold Release Orders (WRO) for the suspected use of forced labor during operations on five individual fishing vessels (
NMFS is proposing to add squid and cuttlefish to SIMP as a single species group. There is significant overlap between the fisheries for both species as well as documented mislabeling of squid as cuttlefish. The two species also share certain U.S. tariff codes. NMFS identified the following risk principles for cuttlefish and squid: lack of enforcement capability, species substitution, lack of catch document scheme, history of fishing violations, chain of custody and processing complexity, and other misrepresentation. NMFS evaluated squid in 2015 and did not find enough risk across the suite of principles to warrant SIMP inclusion (80 FR 66867, October 30, 2015). Since then, new information has demonstrated the escalating fishing pressure on squid, the lack of enforcement capacity, and the increased reports of mislabeling and potential for IUU fishing, especially illegal and unregulated fishing (Lawrence et al., 2022; Park et al., 2020; World Wildlife Fund-Trygg Mat Tracking (WWF-TMT), 2020).
Squid is one of the top 50 seafood imports for the United States. In 2021, the United States imported approximately 40,412 mt ($245M) of squid and cuttlefish. The People's Republic of China, India, and Thailand (in descending order) are the three largest exporters of cuttlefish and squid to the United States. Inclusion would add an estimated 15 HTS codes and 240 ASFIS three-alpha species codes.
NMFS found multiple reports of species substitution for cuttlefish in association with squid and/or octopus mislabeling (Lawrence, 2022; Ho
Squid and cuttlefish have also been the subject of IUU fishing. China, along with various other nations, has taken action against the Chinese distant water fleet (DWF) for illegal fishing for squid and cuttlefish in South American waters (Godfrey, 2019; Godfrey, 2016). In 2016, Argentina sank a Chinese state-owned vessel for repeated illegal harvests. Other nations have taken action against Chinese DWF, such as Ivory Coast's confiscation of two vessels in 2014 and Peru's 2004 detention and fines issued to nine vessels (Godfrey, 2016). In 2019, China issued fines and revised its domestic law on its DWF requiring tracking systems and certificates of origin for legally landed squid (Godfrey, 2019). Despite this, in 2020, Argentina sent China an official complaint about its squid jiggers illegally operating in Argentina's EEZ (Godfrey, 2020). In 2021, China announced a short moratorium on its squid fishing fleets in the Atlantic and Pacific (Godfrey, 2021). A World Wildlife Fund-Trygg Mat Tracking report estimates that unregulated squid fisheries in the Indian Ocean expanded by 830 percent (from 30 to 279 fishing vessels) between 2015 and 2019. The Indian Ocean area subject to increased fishing is beyond the Southern Indian Ocean Fisheries Agreement convention area and the EEZs of Oman and Yemen (WWF-TMT, 2020). The fishing pressure on squid and cuttlefish fisheries is expected to continue to meet the demand in Asian and other foreign markets.
NMFS proposes to add octopus to SIMP due to the species' close connection to squid and cuttlefish fisheries and the following principles: species substitution, lack of enforcement capability, lack of catch document scheme, history of fishing violations, and other misrepresentation. NMFS is not adding octopus to the cuttlefish and squid species group because these species do not share any HTS codes. NMFS evaluated octopus in 2015 and did not find enough risk across the suite of principles to warrant SIMP inclusion (80 FR 66867, October 30, 2015). Since then, various reports have claimed that octopus is at risk for IUU fishing and fraud. Octopus is among the top 50 seafood products imported into the United States. In 2021, the United States imported roughly 30,565 mt ($259M) of octopus. Spain, Indonesia, and Mexico (in descending order) are the three largest exporters of octopus to the United States. Inclusion would add approximately five HTS codes and 75 ASFIS three-alpha species codes to SIMP.
The
The Monterey Bay Aquarium Seafood Watch Program has noted enforcement concerns and illegal fishing for the common octopus and the Mexican Four-
The substitutability of octopus and squid is also a concern (Lawrence, 2022; Luque & Donlan, 2019; Pramod
NMFS is proposing to add eels to SIMP. NMFS evaluated eels in 2015 and did not find enough risk across the suite of principles to warrant SIMP inclusion (80 FR 66867, October 30, 2015). Since then, there has been a significant increase in domestic and international illegal fishing for and trafficking in eels. NMFS identified the following risk principles for eels: lack of enforcement capability, lack of catch document scheme, history of fishing violations, chain of custody and processing complexity, other misrepresentation, and human health risks. In 2021, the United States imported approximately 7,924 mt (valued at $80M) of eels. The People's Republic of China is by far the largest exporter of eels to the United States, followed by Thailand and Taiwan in decreasing magnitude. Inclusion would add approximately eight HTS codes and 13 ASFIS three-alpha species codes to SIMP.
As described below, there have been several domestic and international enforcement efforts and cases on the illegal harvesting and trafficking of eels. The relationship between the history of violations and enforcement capability associated with eels is unclear at this time, and further complicated by the increase in fishing pressure due to market demand and the capacity to illicitly harvest and transport. NMFS is concerned that the enforcement cases indicate a wider problem and believes SIMP inclusion would facilitate future enforcement through better access to harvest and landing data required for U.S. entry.
A 2022 FDA Import Alert (16-131) warned of the detention without Physical Examination of farm-raised shrimp, dace, and eel from China due to the presence of new animal drugs and/or unsafe food additives. The FDA flagged residues of gentian violet, malachite green, and mebendazole for eels under the specific Import Alert. Contaminant levels from pollutants in European eels have been reported to be a human health concern (Guhl
Due to high demand in Asian markets, harvesters have turned to the American eel to fill the void resulting from depleted stocks of Japanese and European eels. Elver (juvenile eel) harvesting is prohibited in the United States as a result of overfishing, except in Maine and South Carolina where the fishery is regulated (Atlantic States Marine Fisheries Commission (ASMFC), 2021; Scientific American, 2015; DOJ, 2018). However, American, European, and Japanese elvers are frequently targeted (International Criminal Police Organization (INTERPOL), 2021). An INTERPOL Environmental Security Programme report describes the “epidemic” of illegal commercial harvest and trafficking of elvers from Europe to Asia since the European Union initiated the zero export quota for the European eel. The eels are matured, harvested, processed, and exported as non-Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) species, such as American or Japanese eels. INTERPOL found species mislabeling was easily done as the species are difficult to distinguish without DNA testing and the products are labeled as “eel” (INTERPOL, 2021). The INTERPOL report also discussed the connection between criminals' exploitation of fisheries products like eels with other criminal and administrative abuses to maximize profits, such as avoiding customs regulations, tax fraud, human trafficking, and food fraud.
In 2022, the United States Department of Justice indicted American Eel Depot and associates for smuggling large quantities of live juvenile European eels from Europe to its factory in China. The government seized six containers that predominantly contained European eels but were intentionally labeled as American eels to circumvent detection by law enforcement. The European Union banned exports of European eel outside member nations in 2010. Per the indictment, the defendants imported roughly 138 containers of eel into the United States over four years, with an estimated market value of over 160 million (DOJ, 2022). The live juvenile eels would be reared in China to maturity, then harvested, processed, and imported to the United States for sushi products. The Department of Justice press release states that “eel poaching and smuggling is one of the world's biggest wildlife trafficking problems, based on both the number of animals and the amount of money that changes hands in the black market” (DOJ, 2022). Additional enforcement initiatives related to illegal harvesting and trafficking of elvers from the United States to other nations (exports) include the United States Fish and Wildlife's Operation Broken Glass in 2018 and a joint enforcement operation across 18 nations sampling eel meat imported in violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora in 2018-2019 (DOJ, 2018; Sustainable Eel Group, 2020). During the latter operation, the United States found several imports of European eel, and further testing detected malachite green in the product (Sustainable Eel Group, 2020).
NMFS is proposing to add Queen Conch (Family Strombidae) to SIMP due to IUU fishing in the Caribbean, lack of enforcement capacity, a lack of a catch document scheme, and human health risks. NMFS evaluated Queen Conch in 2015 and did not find enough risk across the suite of principles to warrant SIMP inclusion (80 FR 66867, October 30, 2015). Since then, NMFS conducted a Status Review for an Endangered Species Act proposed listing (discussed further below) that found significant illegal, unreported, and unregulated fishing of Queen Conch throughout the region. NMFS believes species inclusion in SIMP will deter illegally harvested Queen Conch from being exported to the United States, and the harvest and landing data reported will aid in enforcement efforts. In 2021, the United States imported 702 mt (valued at $14M) of conch (unspecified and
Reports of IUU fishing for Queen Conch are relatively common in the Caribbean (Horn
NMFS is proposing to add Caribbean spiny lobster (
NMFS subject matter experts believe Caribbean Spiny Lobster should now be included in SIMP due to a history of illegal fishing in the Caribbean and lack of enforcement capacity, as well as lack of a catch documentation scheme. Several articles substantiated these concerns in domestic and foreign waters in the Caribbean. A report prepared on behalf of the intergovernmental organization Caribbean Community (CARICOM) found the lack of monitoring, control, and enforcement of existing regulations and widespread IUU fishing are significant obstacles for the Caribbean spiny lobster fishery (Winterbottom
As cold-water lobsters (
NMFS notes that there have been reports of labor abuses in the spiny lobster fishery (Department of Labor (DOL), 2020; DOL, 2022; Department of State, NMFS, 2020). The Department of Labor (2020, 2022) identified use of child labor for lobster harvesting in reports from Honduras. In 2004, the Honduran Government was sued by the Honduran Miskito Association of Disabled Divers and the Association of Miskito Women and the Council of Elders in the Inter-American Court of Human Rights (IACHR) for not holding a company accountable for labor abuses (Morris
NMFS proposes revising the Aggregated Harvest Report exemption as described in § 300.321(b)(1) to clarify the criteria of the small-scale harvest accommodation as a record made at a single collection point on a single calendar day for aggregated catches by multiple small-scale fishing operations. For small-vessel harvests, this means aggregated at a single collection point on a single day by vessels of no more than 20 measured gross tons or by vessels less than 12 meters in overall length. The catch is offloaded at the same collection point on the same calendar day, or landed by a vessel to which the catches of one or more small-scale vessels were transferred at sea. The number of vessels contributing to the collection point for that day must be included in the Aggregated Harvest Report. For small-scale aquaculture operations, this means a record made at a single collection point or processing facility on a single calendar day for aggregated deliveries from multiple small-scale aquaculture facilities, where each aquaculture facility delivers no more than 1,000 kilograms to the same collection point or processing facility on that day. The number of farms contributing to the collection for that day must be included in the Aggregated Harvest Report. An Aggregated Harvest Report may not be used for information for catches harvested by vessels greater than 20 measured gross tons or greater than 12 meters in length overall, catches collected from multiple locations or landed on different days, or deliveries of more than 1,000 kilograms from aquaculture facilities. This proposed rule would add clarifying text to the definition of aggregate harvest report and move the substance of the exemption to a new provision in the regulations, § 300.324(g).
NMFS is issuing this proposed rule pursuant to section 305(d) (16 U.S.C. 1855(d)) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
This proposed rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.
NMFS has prepared a regulatory impact review of this action, which is available from NMFS (see
The primary objective of this proposed rule is to collect or have access to additional data on imported fish and fish products to determine that they have been lawfully acquired and are not fraudulently represented and to deter illegally caught or misrepresented seafood from entering into U.S. commerce. These data reporting and recordkeeping requirements affect,
The permitting, electronic reporting, and recordkeeping requirements proposed by this rulemaking would build on current business practices (
If this rule is finalized, NMFS estimates there will be approximately 487 new applicants for the IFTP, with an estimated industry-wide increase in annual costs to importers of $23,863 in permit fees. Data sets to be submitted electronically to determine product admissibility are, to some extent, either already collected by the trade in the course of supply chain management, already required to be collected and submitted under existing trade monitoring programs (
The proposed rule would apply to U.S. entities that import fish and fish products derived from the designated species. This proposed rule would be implemented so as to avoid duplication or conflict with any other Federal rules. To the extent that the proposed requirements overlap with other reporting requirements applicable to the designated species, this will be been taken into account to avoid collecting data more than once or by means other than the single window (ACE portal). As stated above, this rule is intended to allow NMFS to determine that imported seafood has been lawfully acquired and is not fraudulently represented and to deter illegally caught or misrepresented seafood from entering into U.S. commerce. Given the large volume of fish and fish product imports to the U.S. market, the number of exporting countries, and the fact that traceability systems are being increasingly used within the seafood industry, it is not expected that this rule would significantly affect the overall volume of trade or alter trade flows in the U.S. market for fish and fish products that are legally harvested and accurately represented.
An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule will have on small entities and includes a description of the action, why it is being considered, and the legal basis for this action. The purpose of the RFA is to relieve small businesses, small organizations, and small governmental entities of burdensome regulations and recordkeeping requirements. Major goals of the RFA are: (1) To increase agency awareness and understanding of the impact of their regulations on small business, (2) to require agencies to communicate and explain their findings to the public, and (3) to encourage agencies to use flexibility and to provide regulatory relief to small entities. The RFA emphasizes predicting impacts on small entities as a group distinct from other entities and the consideration of alternatives that may minimize the impacts while still achieving the stated objective of the action. Below is a summary of the IRFA for the proposed rule which was prepared in conjunction with a Regulatory Impact Review (RIR). The IRFA/RIR is available from NMFS (see
The primary objective of this proposed rule is to collect or have access to additional data on imported fish and fish products to determine that it has been lawfully acquired and is not fraudulent and to deter illegally caught or misrepresented seafood from entering into U.S. commerce. These data reporting and recordkeeping requirements affect
If this rule is finalized, NMFS estimates there will be approximately 487 new applicants for the IFTP (all considered small-businesses), with an estimated industry-wide increase in annual costs to importers of $23,863 in permit fees. Data sets to be submitted electronically to determine product admissibility are, to some extent, either already collected by the trade in the course of supply chain management, already required to be collected and submitted under existing trade monitoring programs (
The proposed rule would apply to U.S. entities that import fish and fish products derived from the designated priority species. This proposed rule would be implemented so as to avoid duplication or conflict with any other Federal rules. To the extent that the proposed requirements overlap with other reporting requirements applicable to the designated priority species, this will be taken into account to avoid collecting data more than once or by means other than the single window (ACE portal). As stated above, this rule is intended to allow NMFS to determine that imported seafood has been lawfully acquired and is not fraudulently represented and to deter illegally caught or misrepresented seafood from entering into U.S. commerce. Given the large volume of fish and fish product imports to the U.S. market, the number of exporting countries, and the fact that traceability systems are being increasingly used within the seafood industry, it is not expected that this rule would significantly affect the overall volume of trade or alter trade flows in the U.S. market for fish and fish products that are legally harvested and accurately represented.
NMFS considered several alternatives in this rulemaking: The requirements described in the proposed rule, a no-action alternative and various combinations of data reporting and recordkeeping for the supply chain information applicable to the priority species. NMFS prefers the proposed rule approach as it would respond to the NSM-11 request. In addition, it is consistent with the existing requirement that all applicable U.S. Government agencies are required to implement the International Trade Data System (ITDS) under the authority of the SAFE Port Act and Executive Order 13659, streamlining the Export/Import Process (79 FR 10657, February 28, 2014). Also, the proposed rule takes into account the burden of data collection from the trade and the government requirements for admissibility determinations.
This proposed rule revises an existing collection-of-information requirement (Control Number 0648-0732) previously approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This revised requirement has been submitted to OMB for approval. The information collection burden for the requirements proposed under this rule (IFTP, harvest and landing data submitted at entry, and provision of records of supply chain information when selected for an audit) as applicable to imports of the designated priority is estimated to be 23,985 hours. Compliance costs are estimated to total $23,863 for the permit application fees, $439,907 for data submission into ACE, $391,040 for supply chain recordkeeping, and $34,880 for audit response. To determine estimates, NMFS evaluated the entry filings imported under the HTS codes of the proposed species, as well as the three-alpha species code declared as appropriate. To estimate labor costs of respondent burden, NMFS applied the mean wage rate of Buyers and Purchasing Agents (Bureau of Labor Statistics Code 13-1020). This labor category most closely corresponds to fish importers and customs brokers who will be knowledgeable of the origin of the fish products, code the message set, submit electronic entries in ACE and respond to record requests when selected for audits. As of August 2022, the mean wage rate for this occupation series was estimated at $34.88 per hour (
The online permit application process, including an abbreviated renewals process, is estimated to require 20 minutes on average. The increase in the number of annually issued IFTPs is estimated to be 487 permits, representing an increase of 162 hours and $5,664 in burden hours.
This proposed rule does not anticipate any other information collection burden than what is identified in this section, and therefore is not requesting approval from OMB for the burden associated with any other aspects of the rule. Send comments on these or any other aspects of the collection of information to the NMFS Office for International Affairs, Trade, and Commerce at the
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Exports, Fish, Fisheries, Fishing, Fishing vessels, Foreign relations, Illegal, unreported, or unregulated fishing, Imports, International trade permits, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Treaties.
Administrative practice and procedure, Confidential business information, Fish, Fisheries, Fishing, Fishing vessels, Foreign relations, Illegal, unreported, or unregulated fishing, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.
For the reasons set out in the preamble, 50 CFR part 300, subpart Q, and 50 CFR part 600, subpart H, are proposed to be amended as follows:
16 U.S.C. 951
(a)
(a)
This section establishes a Seafood Traceability Program (also known as the Seafood Import Monitoring Program) which has data reporting requirements at the time of entry for imported fish or fish products and recordkeeping requirements for fish or fish products entered into U.S. commerce. The data reported and retained will facilitate enforcement of section 307(1)(Q) of the Magnuson-Stevens Act and the exclusion of products from entry into U.S. commerce that are misrepresented or the product of illegal or unreported fishing. The data reporting and recordkeeping requirements under the program enable verification of the supply chain of the product offered for entry back to the harvesting event(s). In addition, the permitting requirements of § 300.322 pertain to importers of products within the scope of the program.
(a)(1) For species or species groups subject to this Seafood Traceability Program, data is required to be reported and retained under this program for all fish and fish products, whether fresh, frozen, canned, pouched, or otherwise prepared in a manner that allows, including through label or declaration, the identification of the species contained in the product and the harvesting event. Data is not required to be reported or retained under this program for fish oil, slurry, sauces, sticks, balls, cakes, pudding and other similar fish products for which it is not technically or economically feasible to identify the species of fish comprising the product or the harvesting event(s) contributing to the product in the shipment.
(2) The following species or species groups are subject to this Seafood Import Monitoring Program: Abalone (
(3) The following species or species groups are also subject to this Seafood Traceability Program: Abalone and Shrimp. The harmonized tariff schedule (HTS) numbers applicable to these species or species groups are listed in the documents referenced in paragraph (c) of this section. The Seafood Traceability Program for these species or species groups consists of two components:
(i) The data reporting requirements of paragraphs (b)(1) through (3) and (c) of this section in conjunction with § 300.323(a); and
(ii) The permit requirements of § 300.322, the IFTP number reporting requirement in paragraph (b)(4) of this section in conjunction with § 300.323(a), and the recordkeeping requirements of § 300.323(b) which includes the recordkeeping of all information specified in paragraphs (b) and (e) of this section.
(b) In addition to data reporting requirements applicable, pursuant to other authorities and requirements set out elsewhere in U.S. law and regulation (
(1) Information on the entity(ies) harvesting or producing the fish: Name and flag state of harvesting vessel(s) and evidence of fishing authorization; Unique vessel identifier(s) (if available); Type(s) of fishing gear used to harvest the fish; Name(s) of farm or aquaculture facility. Vessel-, farm-, or aquaculture facility-specific information is not required if the importer of record provides information from an Aggregated Harvest Report as provided under paragraphs (b)(2) and (3) and (g) of this section, unless the product offered for entry is subject to another NMFS program that requires data reporting or documentation at an individual vessel, farm, or aquaculture facility level.
(2) Information on the fish that was harvested and processed: Species of fish (Aquatic Sciences Fishery Information System 3-alpha code as listed at
(3) Information on where and when the fish were harvested and landed: Area(s) of wild-capture or aquaculture location; location of aquaculture facility; point(s) of first landing; date(s) of first landing, transshipment, or delivery; and name of entity(ies) (processor, dealer, vessel) to which fish was landed or delivered. When an Aggregated Harvest Report is used, the importer must provide all of the information under this paragraph (b)(3). Some product offered for entry may be comprised of products from more than one harvest event and each such harvest event relevant to the contents of the shipment must be documented; however, specific links between portions of the shipment and a particular harvest event are not required.
(4) The NMFS-issued IFTP number for the importer of record.
(c) The importer of record, either directly or through an entry filer, is required to submit the data under paragraph (b) of this section through ACE as a message set and/or image files in conformance with the procedures and formats prescribed by the NMFS Implementation Guide and CBP and made available at:
(d) Imported shipments of fish or fish products subject to this program may be selected for inspection and/or the information or records supporting entry may be selected for audit, on a pre- or post-release basis, in order to verify the information submitted at entry and/or determine compliance with this part. To support such inspection and audits, the importer of record must make all records required to be maintained under paragraph (e) of this section available for audit or inspection, at the importer's place of business for a period of two years from the date of the import. In addition, upon request by NMFS, the importer of record (IOR) must transmit records in the manner specified to
(e) In addition to the entry recordkeeping requirements specified at 19 CFR part 163, the importer of record is required to maintain records of the information reported at entry under paragraph (b) of this section, as well as records containing information on the chain of custody of the fish or fish products sufficient to trace the fish or fish product from point of entry into U.S. commerce back to the point of harvest, including individual or Aggregated Harvest Reports, if any, and information that identifies each custodian of the fish or fish product (such as any transshipper, processor, storage facility, or distributor). The latter may include widely used commercial documents such as declarations by the harvesting/carrier vessels or bills of lading. The importer of record must retain records of information reported at entry and chain-of-custody in electronic or paper format, and make them available at the importer of record's place of business for a period of two years from the date of product entry.
(f) Product coming into the Pacific Insular Area, as defined in 16 U.S.C. 1802(35), is subject to all requirements of this section except the ACE filings required under paragraphs (b) and (c) of this section. However, when product is moved from the Pacific Insular Area to any place within the customs territory
(g) An Aggregated Harvest Report, as provided in paragraphs (b)(2) and (3) of this section, may be used to record aggregated catches from small-scale fishing vessels made at a single collection point on a single calendar day, or aggregated deliveries from small-scale aquaculture facilities made at a single collection point or processing facility on a single calendar day.
(1) A small-scale fishing vessel, for purposes of this section, is no more than 20 measured gross tons or less than 12 meters in length overall. An Aggregated Harvest Report may also be used for catches landed by a vessel to which the catches of one or more small-scale fishing vessels were transferred at sea. Aggregated Harvest Reports must include the number of vessels contributing to the collection point for that day.
(2) A small-scale aquaculture facility, for purposes of this section, delivers no more than 1,000 kilograms to the same collection point or processing facility on the single calendar day specified in an Aggregated Harvest Report. Aggregated Harvest Reports must include the number of aquaculture facilities contributing to the collection point or processing facility for that day.
(3) An Aggregated Harvest Report may be used for catches by fishing vessels less than 20 measured gross tons or less than 12 meters in length overall, from catches collected from multiple locations or landed on the same calendar day; or aquaculture facility deliveries of less than 1,000 kilograms, or deliveries made at multiple locations or on the same calendar day.
The addition reads as follows:
(d) Submit an entry filing under § 300.324(b) that includes an IFTP number assigned by NMFS to an entity other than the importer of record.
5 U.S.C. 561 and 16 U.S.C. 1801
(a) Possess, have custody or control of, ship, transport, offer for sale, sell, purchase, land, import, export, or re-export, any fish or parts thereof taken or retained in violation of the Magnuson-Stevens Act or any other statute administered by NMFS or any NMFS regulation in this title or permit issued thereunder, or import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish taken, possessed, transported, or sold in violation of any foreign law or regulation, or any treaty or in contravention of a binding conservation measure adopted by an international agreement or organization to which the United States is a party.
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 January 27, 2023 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.
The Housing Act of 1949 provides the authority for the RHS's direct single family housing loan and grant programs. The programs provide eligible applicants with financial assistance to own adequate but modest homes in rural areas. 7 CFR part 3550 sets forth the programs' policies and the programs' procedures can be found in its accompanying handbooks (Handbook-1-3550 and Handbook-2-3550). To originate and service direct loans and grants that comply with the programs' statute, policies, and procedures, RHS must collect information from low- and very low-income applicants, third parties associated with or working on behalf of the applicants, borrowers, and third parties associated with or working on behalf of the borrowers.
The American Rescue Plan (ARP) Act of 2021 (Pub. L. 117-2; H.R. 1319, section 3207) appropriated an additional $39 million of Budget Authority (BA) for Single Family Housing (SFH) section 502 and 504 Direct Loan Program borrowers. The BA equated to approximately $656.6 million of ARP program funding available in FY 21; due to a change in the subsidy rate, there are approximately $1.955 billion of program funding available in FY 22. Funds remain available until September 30, 2023. The stated purpose of the American Rescue Plan (ARP) Act of 2021 is to provide “
Natural Resources Conservation Service, U.S. Department of Agriculture.
Notice of Intent (NOI) to Prepare an Environmental Impact Statement (EIS).
The Natural Resources Conservation Service (NRCS) Wyoming State Office, in coordination with the USDA Forest Service and the U.S. Army Corps of Engineers (USACE), announces its intent to prepare an EIS for the West Fork Battle Creek Watershed Plan in the proximity of Savery-Little Snake River in Wyoming. The proposed Watershed Plan includes construction of a dam and reservoir on the West Fork of Battle Creek to provide for rural agricultural water management. NRCS is requesting comments to identify significant issues, potential alternatives, information, and analyses relevant to the Proposed Action from all interested individuals, Federal and State Agencies, and Tribes.
We will consider comments that we receive by February 13, 2023. Comments received after the 45-day comment period will be considered to the extent possible.
We invite you to submit comments in response to this notice. You may submit your comments through one of the methods below:
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All comments received will be posted without change and made publicly available on
Andi Neugebauer; telephone: (307) 233-6750; email:
Persons with disabilities who require alternative means for communication should contact the USDA Target Center at (202) 720-2600 (voice).
Project updates will be posted on the NRCS Public Notices website:
The primary goal of the proposed dam and reservoir is to provide a late season supplemental water supply to serve approximately 19,000 acres of irrigated lands in the Little Snake River Basin in Wyoming and Colorado. Under existing climate conditions, the Little Snake River Basin above its confluence with Sand Creek experience irrigation water shortages of approximately 12,000 AF. The objective is to reduce the late season irrigation water and irrigation water shortages in dry years. The project may also mitigate future drought impacts to agriculture and natural resources resulting from climate change. In addition to the irrigation water supply, the proposed reservoir would also benefit fisheries, riparian and wetland wildlife habitats, and water-associated recreation.
Ecological objectives of the project include improvements to aquatic ecosystems and riparian habitats by supplementing stream flows during low-flow periods, and improvements to terrestrial habitat associated with irrigation-induced wetlands. Benefits are expected to accrue to these attributes to the confluence with the Yampa River including improvements to both cold water and warm water sensitive species.
Economic objectives of the project are to reduce late season irrigation water shortages resulting in increased pasture and hay production for regional ranching stability and to enhance habitats that support populations of wildlife and fisheries providing additional economic benefits to the region from hunting, fishing, and other recreational activities.
There are three agencies proposing actions supporting the West Fork Battle Creek Watershed Plan and dam and reservoir construction. Each agency's purpose and need are explained below.
NRCS purpose and need for watershed planning and preparation of an EIS is to provide for rural agricultural water management. The Little Snake River Basin, above its confluence with Sand Creek, experiences an average irrigation water shortage of 12,000 acre-feet (AF). The primary purpose of the watershed plan is to increase water storage to improve late season water supply and reduce the irrigation water shortages in the Little Snake River Basin. Watershed planning is authorized under the Watershed Protection and Flood Prevention Act of 1954, as amended (16 U.S.C. 1001-1009), and the Flood Control Act of 1944 (33 U.S.C. 702b-1). The watershed planning is being partially funded by the Wyoming Water Development Office (WWDO) under Wyoming Statute 41-2-112 and sponsored by the Savery-Little Snake River and Pothook Water Conservancy Districts.
The purpose of participation by the Forest Service in the project is to respond to a request for a land exchange by the Wyoming Office of State Lands and Investments (OSLI). The objective of the Forest Service land exchange program is to use land exchanges as a tool to implement National Forest System (NFS) land and resource management planning and direction, to optimize NFS land ownership patterns, to further resource protection and use, and to meet the present and future needs of the American people (Forest Service Manual (FSM) 5430.2). Basic authorities for the exchange of NFS land and interests in the land are in 7 CFR part 2.60 and FSM 1010. Specifically, the General Exchange Act of 1922 (16 U.S.C. 485 and 486) authorizes the exchange of land or timber that was reserved from the public domain for NFS purposes. Land exchange regulations are in 36 CFR part 254, subpart A, with further direction in FSM 5430. If the reservoir were constructed as proposed, the land exchange would be needed to eliminate the need for a special use permit for the reservoir and associated facilities and to provide for more effective and efficient management of the reservoir and surrounding lands. Pending further analysis, the proposed exchange may meet other guidelines specified in Appendix F of the 2003 Medicine Bow National Forest Revised Land and Resource Management Plan.
The purpose of participation by USACE in the project will be to respond to a section 404 standard individual permit application under the authority of The Clean Water Act to store approximately 10,000 AF for the purpose of providing late season irrigation water to the Little Snake River Basin, above its confluence with Sand Creek, and enhanced habitat benefits downstream. The overall project
The Sponsor intends to pursue authorization for construction of the West Fork Battle Creek Watershed project from the NRCS, under the Watershed and Flood Prevention Operations Program (Watershed Protection and Flood Prevention Act of 1954, as amended, Pub. L. 83-566). The Sponsor submitted a Sponsor Request for financial assistance through the NRCS's Public Law 83-566 Watershed and Flood Prevention Operations Program in July 2019 and secured funding in the amount of $1.25 million to complete a Watershed Planning Study National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321-4347) document for the proposed project. The WWDO has provided an additional $1.25 million for this effort.
The Sponsor, in coordination with the WWDO, has proposed to construct a 264-foot-high roller-compacted concrete (RCC) dam to store 10,000 AF of water with a surface area of 130 acres. The reservoir pool would contain three storage accounts: 6,500 AF of irrigation storage, 1,500 AF of storage to maintain a minimum bypass flow, and a 2,000-acre-foot conservation pool. The proposed reservoir would be constructed on the West Fork of Battle Creek just below the confluence of Haggerty Creek and Lost Creek approximately 20 miles east-northeast of Savery, Wyoming. The project would be located on private and public lands in the Sierra Madre Mountains within the Brush Creek-Hayden Ranger District of the Medicine Bow-Routt National Forests.
A proposed land exchange to construct and operate the proposed project would include selected parcels of the NFS lands within and adjacent to the West Fork Battle Creek Reservoir site on the Medicine Bow-Routt National Forests with deemed equivalent State lands. The proposed land exchange would include approximately 1,350 acres of Forest Service-managed lands within Medicine Bow-Routt National Forests and would include parts of Haggarty Creek, Lost Creek, and West Fork Battle Creek. Approximately 2,024 acres of state land inholdings located in the Medicine Bow-Routt National Forests have been proposed to be evaluated for the land exchange. The State lands deemed equivalent with the Forest Service-managed lands will be analyzed as part of the proposed project.
The EIS will examine the proposed action and alternative solutions to reduce late season irrigation water shortages in the Little Snake River Basin. Alternatives that may be considered for detailed analysis include:
To inform development of these general alternatives, the Sponsor and WWDO have conducted studies within the Little Snake River Basin to determine irrigation shortages and supply conditions, as well as to identify potential alternative locations for reservoirs that would augment the irrigation water supply to meet downstream shortages. Potential locations were evaluated using criteria such as ability to meet user needs, access, multiple-use potential, geotechnical feasibility, landownership, resource constraints (cultural and natural resource concerns), ability to permit, and cost. Table 1 provides a summary of information for each potential location considered in these studies by the Sponsor and WWDO. Each location will be reviewed to determine if it should be carried forward for detailed analysis in the EIS.
The Proposed Action and alternatives may have significant local, regional, or national impacts on the environment. Preliminary issues for the project include changes to hydrology, changes to water quality within the reservoir and downstream from the elevated copper levels in Haggerty Creek, climate change impacts affecting agriculture, impacts to aquatic and terrestrial wildlife habitats, changes to fisheries and downstream threatened and endangered Colorado River fish species, impacts to cultural and Tribal resources, and economic outcomes associated with agricultural, recreational, tourism, and wildlife-related activities.
• The following permits and other authorizations are anticipated to be required:
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There are three agencies with decisions to make related to the West Fork Battle Creek Watershed Plan and dam and reservoir construction. The Savery-Little Snake River Water Conservancy District and Pothook Water Conservancy District (collectively referred to as the Sponsor) intend to pursue authorization for implementation of the West Fork Battle Creek Watershed Plan from NRCS under the Watershed and Flood Prevention Operations Program. Due to the project's location, which would be partially on federal lands managed by the Forest Service, the OSLI has proposed a land exchange with the Forest Service. The project could require an individual permit from USACE under the provisions of section 404 of the Clean Water Act (33 U.S.C. 1344).
NRCS may provide financial assistance to the Sponsor to implement the selected alternative identified in the West Fork Battle Creek Watershed Plan EIS.
The Forest Supervisor of MBRTB is the responsible official for the Forest Service's decision for the proposed land exchange. Once the NEPA analysis is complete, the Forest Supervisor will decide whether or not to proceed with the land exchange, the rationale for the decision, and any conditions that will be attached to the selected alternative including, but not limited to, design criteria, mitigation, and monitoring.
Based on the analysis presented in the West Fork Battle Creek Watershed Plan EIS and through evaluation of a section 404 permit application, USACE may authorize a section 404 individual permit for the purpose of constructing a dam and reservoir as components of the West Fork Battle Creek Watershed Plan and, if so, under what terms and conditions
Public meetings will be held in Baggs and Saratoga, Wyoming, and in Craig, Colorado, to determine the scope of the analysis presented in the EIS. Meetings are scheduled to occur in January 2023 and will be held at selected public venues in each location. Exact meeting locations and times will be determined closer to dates of the events. Public notices will be placed in local newspapers and on the NRCS and Forest Service websites. Additionally, letters providing details on the public meetings and the scoping comment and objection processes will be sent to federal and state agencies, Tribes, local landowners, and interested parties.
NRCS, Forest Service, and USACE invite the participation of and consultation with agencies and individuals that have special expertise, legal jurisdiction, or interest in the preparation of the draft EIS. Comments received, including names and addresses of those who comment, will be considered part of the public record. Comments submitted anonymously will be accepted and considered; however, they will not be used to establish standing for the Forest Service objection process.
NRCS, Forest Service, and USACE will use the scoping process to help fulfill the public involvement process under section 106 of the National Historic Preservation Act (54 U.S.C. 306108), as provided for in 36 CFR 800.2(d)(3). Information about historic and cultural resources within the area potentially affected by the proposed action and alternatives will assist the NRCS, Forest Service, and USACE in identifying and evaluating impacts to such resources in the context of both NEPA and section 106 of the National Historic Preservation Act.
Native American Tribal consultations will be conducted in accordance with policy, and Tribal concerns will be given due consideration. Federal, state, and local agencies, along with other stakeholders that may be interested or affected by the NRCS, Forest Service, or USACE decisions on this project, are invited to participate in the scoping process and, if eligible, may request or be requested by the NRCS to participate as a cooperating agency.
NRCS invites agencies, Tribes, and individuals who have special expertise, legal jurisdiction, or interest in the West Fork Battle Creek Watershed Plan and dam and reservoir construction to provide comments concerning the scope of the analysis and identification of potential alternatives, information, and analyses relevant to the Proposed Action.
The Forest Service decision for the project (whether or not to proceed with the land exchange) will be subject to the Forest Service's project-level pre-decisional administrative review process in 36 CFR part 218, subparts A and B (referred to as the “objection process”). Individuals and entities who submit timely, specific written comments regarding the proposed land exchange during any designated opportunity for public comment will have standing to file an objection. Designated opportunities for public comment include the initial scoping period described in this notice of intent as well as the 45-day comment period for the draft EIS. It is the responsibility of persons providing comments to submit them by the close of the established comment periods. Only those who submit timely and specific written comments will be eligible to file an objection. Names and contact information submitted with comments will become part of the public record, will be publicly available on regulations.gov, and may be released under the Freedom of Information Act.
This document is published as required by section 102(2)(C) of NEPA, the Council on Environmental Quality regulations (40 CFR parts 1500-1508), NRCS regulations that implement NEPA in 7 CFR parts 622 and 650, Forest Service regulations that implement NEPA in 36 CFR part 220, FSM 1950, Forest Service Handbook (FSH) 1909.15, and USACE under the provisions of section 404 of the Clean Water Act. Watershed planning is authorized under the Watershed Protection and Flood Prevention Act of 1954, as amended, (Pub. L. 83-566) and the Flood Control Act of 1944 (Pub. L. 78-534).
The titles and numbers of the Federal Assistance Programs in the Catalog of Federal Domestic Assistance to which this Notice of Funding Availability applies is 10.904 Watershed Protection and Flood Prevention. NRCS will coordinate the scoping process as provided in 36 CFR 800.2(d)(3) and 800.8 (54 U.S.C. 306108) to help fulfill the National Historic Preservation Act (NHPA), as amended review process.”
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive order are to foster an intergovernmental partnership and a strengthened federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. This program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
In accordance with Federal civil rights law and USDA civil rights regulations and policies, USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident. Persons with disabilities who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA TARGET Center at (202) 720-2600 (voice and TTY) or (844) 433-2774 (toll-free nationwide). Additionally, program information may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
USDA is an equal opportunity provider, employer, and lender.
Office of Partnerships and Public Engagement, USDA.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), the Office of Partnerships and Public Engagement (OPPE) is announcing a meeting of the Advisory Committee on Minority Farmers (ACMF). USDA Secretary Vilsack is committed to actions that enhance minority farmers' ability to produce and thrive as businesses through USDA's customer service enhancements, expanded outreach, technical assistance, and capacity building. To that end, the ACMF will likewise recommend action-oriented strategies for maximizing the participation of minority farmers by leveraging those programs that ensure a food secure nation and effectively steward our natural resources. These principals will usher in business growth and opportunity for those minority agricultural communities plagued with fragile economies in decline.
The ACMF meeting will begin on January 18-20, 2022, from 9:00 a.m.-5:00 p.m. Pacific Standard Time (PST). Time will be allotted at the end of each morning and afternoon for comments from those attending. Public participants may also view the committee proceedings and presentations via Zoom:
All persons wishing to make comments
Members of the public who sign up to give oral comments to the Committee will be allowed time according to the number of speakers scheduled for each morning and afternoon public comment period. Members joining virtually may also request permission to give oral comments and will be instructed by the conference moderator on when and how to make live comments. Please remember that the comments made during the meeting will be added to the committee record only. Direct engagement or exchanges with committee members is not permitted while the meeting is in session.
The meeting will be held at the University of California, at Davis' ARC Conference Center, 760 Orchard Road, Davis, CA 95616. Drivers are instructed to park in Lot 25. A searchable campus map may be accessed here:
General information about the committee can also be found at
The ACMF will be pivotal in its liaison role that both informs and advises the Secretary of actions that may be taken to support minority farming growth and assist them with challenges of today, as well as those they will face in coming years. During this public meeting, the ACMF will explore and consider challenges specific to minority rural farming communities, including but not limited to: (1) infrastructure and housing (
From these topics, the ACMF will deliberate and form its next set of recommendations for the current term. The ACMF specifically seeks to engage and hear directly from a broad geographical cross-section of minority farmers on their experiences, pathways, and challenges as they contend with severe weather events or continued barriers of entry and economically sustainable farming. The USDA will also want to hear about personal experiences and encourage all to participate, including those organizations that support farmers from a large cross-section of farm type or size and ethnic diversity.
The Committee was established pursuant to section 14008 of the Food Conservation and Energy Act of 2008, Public Law 110-246, 122 Stat. 1651,
Office of the Secretary, Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites 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. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before February 27, 2023.
Interested persons are invited to submit written comments to the Department Paperwork Reduction Act Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to S. Dumas, DOC PRA Clearance Officer, Office of Policy and Governance, 14th and Constitution Avenue NW, Room 6616, Washington, DC 20230 (202) 482-3306 or at
This is a request for a new information collection.
This collection of information is needed to obtain information from the respondents who request meetings or appearances with Senior Officials or those who register to participate in DOC events, and conferences. The information is collected by the DOC employees who host the conferences and events, and those who manage calendars for Senior personnel. DOC is collecting common elements from interested respondents such as name, organization, address, country, phone number, email address, state, city or town, special accommodations requests and how the respondent learned of the event or conference. The information collection element may also include race, ethnicity, gender and veteran status, and other relevant information. The information is primarily used to assess attendance and assist DOC staff in preparations to serve individuals registering for online or in person events. If applicable, the information collection may be used to collect payment from the respondents and make hotel reservations and other special arrangements as necessary. Race, ethnicity, gender, and other demographic information obtained through registration is voluntary, and is used to monitor DOC's outreach and engagement of equity and support for underserved communities. This information is not used to evaluate any DOC program application and choosing not to provide this information will not affect the application process for any individual applying to a DOC program.
Information on this form will be collected using a paper format or electronically and requires the victim's signature either by ink pen or CAC.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) 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; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms 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 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.
Office of the Secretary, Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites 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. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before February 27, 2023.
Interested persons are invited to submit written comments to the Department Paperwork Reduction Act Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to S. Dumas, DOC PRA Clearance Officer, Office of Policy and Governance, 14th and Constitution Avenue NW, Room 6616, Washington, DC 20230 (202) 482-3306 or at
Executive Order 12862 directs Federal agencies to provide service to the public that matches or exceeds the best service available in the private sector. In order to work continuously to ensure that the Department of Commerce (DOC) programs are effective and meet our customers' needs we use a generic clearance process to collect qualitative feedback on our service delivery. This collection of information is necessary to enable DOC to garner customer and stakeholder feedback in an efficient, timely manner, in accordance with our commitment to improving service delivery. The information collected from our customers and stakeholders will help ensure that users have an effective, efficient, and satisfying experience with the programs. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between DOC and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance.
The methods of collection include but are not limited to in-person surveys, telephone interviews or questionnaires, mail and email surveys, web-based products, focus groups, and comment cards.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) 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; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms 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 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.
TSMC Arizona Corporation submitted a notification of proposed production activity to the FTZ Board (the Board) for its facility in Phoenix, Arizona within Subzone 75O. The notification conforming to the requirements of the Board's regulations (15 CFR 400.22) was received on December 13, 2022.
Pursuant to 15 CFR 400.14(b), FTZ production activity would be limited to the specific foreign-status material(s)/component(s) and specific finished product(s) described in the submitted notification (summarized below) and subsequently authorized by the Board. The benefits that may stem from conducting production activity under FTZ procedures are explained in the background section of the Board's website—accessible via
The proposed finished product is semiconductor wafers (duty rate is duty-free).
The proposed foreign-status materials and components include: methane (liquid; gas); chlorine; hydrogen; helium; xenon; nitrogen; acids (hydrochloric; nitric; phosphoric; hydrofluoric also known as hydrogen fluoride); hydrogen chloride; acid based solutions (phosphoric; acetic; nitric); silicate reagent; hydrogen bromide; carbon dioxide; silica; carbon monoxide; dinitrogen monoxide also known as nitrous oxide; nitric oxide; sulfur dioxide; boron trichloride; dichlorosilane; silane; silicon tetrachloride; chlorine trifluoride; diiodosilane; nitrogen trifluoride; anhydrous ammonia; ammonia; potassium hydroxide; slurries (potassium hydroxide based; cerium hydroxide based; polyglycerol polymer based; acetic acid based; ammonium hydroxide based; amorphous silica based; cerium dioxide based; potassium hydroxide based; silica based; tetraethylammonium hydroxide based; silica and phosphoric acid based); sulfur hexafluoride gas; tungsten hexafluoride; titanium tetrachloride; carbonyl sulfide; solutions (copper sulphate; potassium chloride electrode filling; hydrocarbon deposition; N-methylethanolamine; potassium chloride based; methyl 2-hydroxyisobutyrate based photoresist; propylene glycol monomethyl ether acetate based photoresist; surfactant; triethanolamine based; 4-morpholinecarbaldehyde based; ammonium fluoride based; cobalt based; ethylene glycol based; tetrahydrothiophene-1,1-dioxide based); hydrogen peroxide; disilane; n-octane; ethyne also known as acetylene; trifluoromethane; tetrafluoromethane also known as perfluromethane; hexafluoro-1,3-butadiene; octafluorocyclobutane; alcohols (isopropyl; tert-butyl); hexachlorodisilane; 2-heptanone; cyclohexanone; cyclopentanone; butyl acetate; propylene glycol monomethyl ether acetate; pentakis(dimethylamino)tantalum(V) powder; tetrakis(methylethylamino)zirconium; developer solutions (tetramethylammonium hydroxide; isobutyl propionate based); bis(diethylamino)silane; hexamethyldisilazane photoresist; N,N-bis(1-methylethyl)silanamine; tetramethylsilane; triethylaluminum; trimethylaluminum; trimethylsilane; butyrolactone; 2-propanol, 1-methoxy-, 2-acetate based undercoat material; wafer cleaning solutions (butoxyethanol based; ethanolamine based; hydroxyethanediphosphonic acid based); mixtures (photoresist chemical; diborane and argon; diborane and hydrogen; fluorine and nitrogen; helium and nitrogen; helium based compressed gas; hydrogen and argon; hydrogen and helium; hydrogen and nitrogen; methane and argon; oxygen and helium; xenon and hydrogen); cleaning solvents (dimethyl sulfoxide based; tetramethylammonium hydroxide based); propylene glycol monomethylether based solvents; semi-processed semiconductor silicon wafers (doped; raw; reclaimed); benzotriazole based cleaning solutions; anti-reflective photoresist chemical coatings; copper anode discs; and, sputtering targets (cobalt; copper; tantalum; titanium) (duty rate ranges from duty-free to 6.5%). The request indicates that certain materials/components are subject to duties under section 301 of the Trade Act of 1974 (section 301), depending on the country of origin. The applicable section 301 decisions require subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Online FTZ Information System” section of the Board's website.
For further information, contact Juanita Chen at
Par Hawaii Refining, LLC submitted a notification of proposed production activity to the FTZ Board (the Board) for its facility in Kapolei, Hawaii within Subzone 9A. The notification conforming to the requirements of the Board's regulations (15 CFR 400.22) was received on December 14, 2022.
Pursuant to 15 CFR 400.14(b), FTZ production activity would be limited to the specific foreign-status material(s)/component(s) and specific finished product(s) described in the submitted notification (summarized below) and subsequently authorized by the Board. The benefits that may stem from conducting production activity under FTZ procedures are explained in the background section of the Board's website—accessible via
The proposed finished products include renewable diesel fuel, sustainable aviation fuel, renewable naphtha and carbon dioxide (duty rates—10.5 cents per barrel and 3.7%).
The proposed foreign-status materials and components are crude and refined soybean oil (duty rate 19.1%). The request indicates that the materials/components are subject to duties under section 301 of the Trade Act of 1974 (section 301), depending on the country of origin. The applicable section 301 decisions require subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Online FTZ Information System” section of the Board's website.
For further information, contact Diane Finver at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this expedited sunset review, the U.S. Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) order on paper clips from the People's Republic of China (China) would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable December 28, 2022.
Caroline Carroll or Thomas Martin, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4948 and (202) 482-3936 respectively.
On September 1, 2022, Commerce published the notice of initiation of the fifth sunset review of the
Commerce received a complete substantive response from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
On October 25, 2022, Commerce notified the U.S. International Trade Commission that it did not receive an adequate substantive response from respondent interested parties.
The products covered by the
All issues raised in this sunset review are addressed in the Issues and Decision Memorandum, including the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to an APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the 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 violation which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.221(c)(5)(ii).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable December 28, 2022.
Thomas Martin, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3936.
On October 12, 2022, the U.S. Department of Commerce (Commerce) initiated a countervailing duty (CVD) investigation of imports of paper file folders from India.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a CVD investigation within 65 days after the date on which Commerce initiated the investigation. However, section 703(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 130 days after the date on which Commerce initiated the investigation if: (A) the petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny it.
On December 9, 2022, the Coalition of Domestic Folder Manufacturers (the petitioner) timely filed a request for Commerce to postpone the preliminary CVD determination so that Commerce may review all questionnaire responses and new factual information to permit a thorough investigation and the calculation of accurate subsidy rates.
In accordance with 19 CFR 351.205(e), the petitioner has stated the reasons for requesting a postponement of the preliminary determination, and Commerce finds no compelling reason to deny the request. Therefore, in accordance with section 703(c)(1)(A) of the Act, Commerce is postponing the deadline for the preliminary determination to no later than the next business day after 130 days after the date on which this investigation was initiated,
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that Zhejiang Fuerjia Wooden Co., Ltd. (Fuerjia) did not make sales of subject merchandise at less than normal value (NV), that certain companies had no shipments of subject merchandise during the period of review (POR) December 1, 2020, through November 30, 2021, that Arte Mundi Group Co., Ltd. (Arte Mundi Group) is the successor-in-interest to Arte Mundi (Shanghai) Aesthetic Home Furnishings Co., Ltd. (Arte Mundi Shanghai), and that Metropolitan Hardwood Floors, Inc. (Metropolitan) is part of the China-wide entity. Finally, we are rescinding the review with respect to certain companies. Interested parties are invited to comment on these preliminary results.
Applicable December 28, 2022.
Alexis Cherry or Max Goldman, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6478 or (202) 482-0224, respectively.
Commerce is conducting an administrative review of the antidumping duty order on multilayered wood flooring (MLWF) from the People's Republic of China (China).
For events that occurred since the
The product covered by the
On February 7, 2022, Zhejiang Yuhua Timber Co. Ltd. (Zhejiang Yuhua) and A-Timber Flooring Company Limited (A-Timber) withdrew their requests for review.
Jiashan HuiJiaLe Decoration Material Co., Ltd. (Jiashan HuiJiaLe) also withdrew its request for an administrative review of itself.
Based on an analysis of information from U.S. Customs and Border Protection (CBP), no-shipment certifications, and other record information, we preliminarily determine that 34 companies had no shipments of subject merchandise during the POR.
We preliminarily determine that, in addition to Fuerjia, four companies not individually-examined are eligible for separate rates in this administrative review.
For the preliminary results of this review, Commerce has determined the estimated dumping margin for Fuerjia to be zero. Consistent with the guidance of section 735(c)(5)(B) of the Act, and for the reasons explained in the Preliminary Decision Memorandum, we are assigning this rate to the non-examined respondents which qualify for a separate rate in this review.
Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review.
Commerce selected Metropolitan as one of two mandatory respondents in this administrative review.
Aside from the companies for which we preliminarily find had no shipments and the companies for which the review is being rescinded, Commerce considers all other companies for which a review was requested and did not demonstrate separate rate eligibility to be part of the China-wide entity.
Arte Mundi Group reported that during the POR, it changed its English name from Arte Mundi Shanghai to Arte Mundi Group.
We are conducting this administrative review in accordance with sections 751(a)(1)(B) of the Act and 19 CFR 351.213. We calculated export prices for Fuerjia in accordance with section 772(a) of the Act. Because China is an NME within the meaning of section 771(18) of the Act, we calculated NV in accordance with section 773(c) of the Act.
We preliminarily determine that the following weighted-average dumping margins exist for the POR December 1, 2020, through November 30, 2021:
We intend to disclose to interested parties the calculations performed for these preliminary results in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically via Commerce's electric records system, ACCESS. An electronically-filed request must be received successfully in its entirety by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Unless otherwise extended, we intend to issue the final results of this administrative review, which will include the results of our analysis of the issues raised in the case and rebuttal briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review, in accordance with 19 CFR 351.212(b)(1). Commerce intends to issue assessment instructions to CBP 35 days after the publication of the final results of this review. If a timely summons is filed at the U.S. Court of International Trade, the assessment instructions will direct CBP not to liquidate relevant entries until the time for parties to file a request for a statutory injunction has expired (
If Fuerjia's
For the respondents that were not selected for individual examination in this administrative review that qualified for a separate rate, the assessment rate will be the separate rate established in the final results of this administrative review.
If, in the final results, Fuerjia's weighted-average dumping margin continues to be zero or
For the companies for which the administrative review is rescinded, antidumping duties shall be assessed at a rate equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). We intend to issue appropriate assessment instructions to CBP with respect to the companies for which this administrative review is rescinded 35 days after the publication of the preliminary results in the
The following cash deposit requirements will be effective upon publication of the final results of this review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for the companies that have a separate rate, the cash deposit rate will be that rate established in the final results of this review (except, if the rate is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties, and/or an increase in the amount of antidumping duties by the amount of the countervailing duties.
We are issuing and publishing the preliminary results of this review in accordance with sections 751(a)(l) and 777(i)(l) of the Act, 19 CFR 351.213(d)(4), and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that the producers/exporters subject to this administrative review made sales of subject merchandise at less than normal value during the period of review (POR), December 1, 2020, through November 30, 2021. Interested parties are invited to comment on these preliminary results.
Applicable December 28, 2022.
Benjamin A. Luberda or Alice Maldonado, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2185 or (202) 482-4682, respectively.
On February 4, 2022, based on timely requests for review, in accordance with
On August 17, 2022, Commerce extended the deadline for the preliminary results of this administrative review until December 20, 2022.
The merchandise subject to the
Commerce is conducting this review in accordance with section 751(a)(1)(B) and (2) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
The Act and Commerce's regulations do not address the rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies that were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
Consistent with section 735(c)(5)(A) of the Act, we determined the weighted-average dumping margin for each of the non-selected companies by using the weighted-average dumping margins calculated for Ajmal and Universal in this administrative review.
As a result of this review, we preliminarily determine that the following estimated weighted-average dumping margins exist for the period December 1, 2020, through November 30, 2021:
Commerce intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Acting Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically via ACCESS within 30 days after publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis raised in any written briefs, not later than 120 days after the publication date of this notice, unless otherwise extended.
Upon completion of the administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries.
For the companies that were not selected for individual review, we intend to assign an assessment rate based on the methodology described in the “Rate for Non-Examined Companies” section. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
Commerce's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (
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 deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for the exporters listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily finds that circular welded carbon-quality steel pipe (CWP) from the Sultanate of Oman (Oman) was sold in the United States at less than normal value (NV) during the period of review (POR), December 1, 2019, through November 30, 2020, and the POR, December 1, 2020, through November 30, 2021. Interested parties are invited to comment on these preliminary results.
Applicable December 28, 2022.
Samuel Glickstein or Dennis McClure, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5307 or (202) 482-5973, respectively.
In accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act), Commerce is conducting an administrative review of the antidumping duty order on CWP from Oman.
On August 17, 2022, we extended the deadline for the preliminary results of this review until December 21, 2022.
The merchandise subject to the
Commerce is conducting this review in accordance with section 751(a) of the Act. Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying these preliminary results,
The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy less-than-fair-value (LTFV) investigation, for guidance when determining the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted average dumping margins established for exporters and producers individually investigated, excluding any zero and
For the 2020-2021 POR, we have preliminarily calculated a weighted-
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist for the periods December 1, 2019, through November 30, 2020, and December 1, 2020, through November 30, 2021:
We intend to disclose the calculations performed for these preliminary results of review to interested parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis raised in any written briefs, no later than 120 days after the publication of these preliminary results in the
Upon completion of this administrative review, Commerce shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries for the 2019-2020 POR and the 2020-2021 POR, at the applicable
Commerce clarified its “automatic assessment” regulation on May 6, 2003.
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication 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 each company listed above will be equal to the weighted-average dumping margin established in the final results of this review for the 2020-2021 POR, except, if that rate is
This notice serves as a preliminary 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 2019-2020 POR and the 2020-2021 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.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) received scope ruling applications, requesting that scope inquiries be conducted to determine whether identified products are covered by the scope of antidumping duty (AD) and/or countervailing duty (CVD) orders and that Commerce issue scope rulings pursuant to those inquiries. In accordance with Commerce's regulations, we are notifying the public of the filing of the scope ruling applications listed below in the month of November 2022.
Applicable December 28, 2022.
Terri Monroe, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-1384.
Ammonium Sulfate from the People's Republic of China (China) (A-570-049/C-570-050); Enriched
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules from China (A-570-979/C-570-980); T8700 eufyCam Security Solar Panel;
Hand Trucks and Certain Parts Thereof from China (A-570-891); Mobile Utility Fan;
Aluminum Extrusions from China (A-570-967/C-570-968); Heat Sink Manifold;
This list of scope ruling applications is not an identification of scope inquiries that have been initiated. In accordance with 19 CFR 351.225(d)(1), if Commerce has not rejected a scope ruling application nor initiated the scope inquiry within 30 days after the filing of the application, the application will be deemed accepted and a scope inquiry will be deemed initiated the following day—day 31.
In accordance with 19 CFR 351.225(m)(2), if there are companion AD and CVD orders covering the same merchandise from the same country of origin, the scope inquiry will be conducted on the record of the AD proceeding. Further, please note that pursuant to 19 CFR 351.225(m)(1), Commerce may either apply a scope ruling to all products from the same country with the same relevant physical characteristics, (including chemical, dimensional, and technical characteristics) as the product at issue, on a country-wide basis, regardless of the producer, exporter, or importer of those products, or on a company-specific basis.
For further information on procedures for filing information with Commerce through ACCESS and participating in scope inquiries, please refer to the Filing Instructions section of the Scope Ruling Application Guide, at
Please note that this notice of scope ruling applications filed in AD and CVD proceedings may be published before any potential initiation, or after the initiation, of a given scope inquiry based on a scope ruling application identified in this notice. Therefore, please refer to the case segment on ACCESS to determine whether a scope ruling application has been accepted or rejected and whether a scope inquiry has been initiated.
Interested parties who wish to be served scope ruling applications for a particular AD or CVD order may file a request to be included on the annual inquiry service list during the anniversary month of the publication of the AD or CVD order in accordance with 19 CFR 351.225(n) and Commerce's procedures.
Interested parties are invited to comment on the completeness of this monthly list of scope ruling applications received by Commerce. Any comments should be submitted to James Maeder, Deputy Assistant Secretary for AD/CVD Operations, Enforcement and Compliance, International Trade Administration, via email to
This notice of scope ruling applications filed in AD and CVD proceedings is published in accordance with 19 CFR 351.225(d)(3).
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
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
National Marine Fisheries Service (NMFS); National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of standard prices and fee percentage.
NMFS publishes the individual fishing quota (IFQ) standard prices and fee percentage for cost recovery for the IFQ Program for the halibut and sablefish fisheries of the North Pacific (IFQ Program). The fee percentage for 2022 is 1.9 percent. This action is intended to provide holders of halibut and sablefish IFQ permits with the 2022 standard prices and fee percentage to calculate the required payment for IFQ cost recovery fees due by January 31, 2023.
The standard prices and fee percentages are valid on December 28, 2022.
Charmaine Weeks, Fee Coordinator, 907-586-7231.
NMFS Alaska Region administers the IFQ Program in the North Pacific. The IFQ Program is a limited access system authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982 (Halibut Act). Fishing under the IFQ Program began in March 1995. Regulations implementing the IFQ Program are set forth at 50 CFR part 679.
In 1996, the Magnuson-Stevens Act was amended to, among other purposes, require the Secretary of Commerce to collect a fee to recover the actual costs directly related to the management and enforcement of any individual quota program. This requirement was further amended in 2006 to include collection of the actual costs of data collection and to replace the reference to “individual quota program” with a more general reference to “limited access privilege program” at section 304(d)(2)(A) of the Magnuson-Stevens Act. Section 304(d)(2) of the Magnuson-Stevens Act also specifies an upper limit on these fees, when the fees must be collected, and where the fees must be deposited.
On March 20, 2000, NMFS published regulations at § 679.45 to implement cost recovery for the IFQ Program (65 FR 14919, March 20, 2000). Under the regulations, an IFQ permit holder must pay a cost recovery fee for every pound of IFQ halibut and sablefish that is landed on their IFQ permit(s). The IFQ permit holder is responsible for self-collecting the fee for all IFQ halibut and sablefish landings on their permit(s). The IFQ permit holder is also responsible for submitting IFQ fee payments(s) to NMFS on or before January 31 of the year following the year in which the IFQ landings were made. The total dollar amount of the fee is determined by multiplying the NMFS published fee percentage by the ex-vessel value of all IFQ landings made on the permit(s) during the IFQ fishing year. As required by § 679.45(d)(1) and (d)(3)(i), NMFS publishes this notice of the fee percentage for the IFQ halibut and sablefish fisheries in the
The fee is based on the sum of all payments made to fishermen for the sale of the fish during the year. This includes any retro-payments (
For purposes of calculating IFQ cost recovery fees, NMFS distinguishes between two types of ex-vessel value: actual and standard. Actual ex-vessel value is the amount of all compensation,
Section 679.45(b)(3)(iii) requires the Regional Administrator to publish IFQ standard prices during the last quarter of each calendar year. These standard prices are used, along with estimates of IFQ halibut and IFQ sablefish landings, to calculate standard ex-vessel values. The standard prices are described in U.S. dollars per IFQ equivalent pound for IFQ halibut and IFQ sablefish landings made during the year. According to § 679.2, IFQ equivalent pound(s) means the weight amount, recorded in pounds, and calculated as round weight for sablefish and headed and gutted weight for halibut, for an IFQ landing. The weight of halibut in pounds landed as guided angler fish is converted to IFQ equivalent pound(s) as specified in 50 CFR 300.65(c)(5)(ii)(E). NMFS calculates the standard prices to closely reflect the variations in the actual ex-vessel values of IFQ halibut and IFQ sablefish landings by month and port or port-group. The standard prices for IFQ halibut and IFQ sablefish are listed in the tables that follow the next section. Data from ports are combined as necessary to protect confidentiality.
NMFS calculates the fee percentage each year according to the factors and methods described at § 679.45(d)(2). NMFS determines the fee percentage that applies to landings made in the previous year by dividing the total costs directly related to the management, data collection, and enforcement of the IFQ Program (management costs) during the previous year by the total standard ex-vessel value of halibut and sablefish IFQ landings made during the previous year (fishery value). NMFS captures the actual management costs associated with certain management, data collection, and enforcement functions through an established accounting system that allows staff to track labor, travel, contracts, rent, and procurement. NMFS calculates the fishery value as described under the section Standard Prices.
Using the fee percentage formula described above, NMFS determined that the percentage of management costs to fishery value for the 2022 calendar year is 1.9 percent of the standard ex-vessel value. An IFQ permit holder is to use the fee percentage of 1.9 percent to calculate their fee for IFQ equivalent pound(s) landed during the 2022 halibut and sablefish IFQ fishing season. An IFQ permit holder is responsible for submitting the 2022 IFQ fee payment to NMFS on or before January 31, 2023. Payment must be made in accordance with the payment methods set forth in § 679.45(a)(4)(iv). Payment can be made using credit card, debit card, or electronic check via the
The 2022 fee percentage of 1.9 percent is less than the 2021 fee percentage of 2.3 percent (86 FR 74071, December 29, 2021). Between 2021 and 2022 there was a net increase in management costs as well as a net increase in fishery value. Management costs increased by approximately 6 percent while fishery value increased by approximately 27 percent. The net increase in value was due to higher ex-vessel prices and landings for both halibut and sablefish IFQ fisheries.
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
NMFS is currently collecting census-level information on fishing vessel and gear characteristics in the Gulf of Mexico (Gulf) commercial shrimp fishery (Gulf shrimp fishery), which operates in the Gulf exclusive economic zone. NMFS uses this information to conduct analyses that improve fishery management decision-making and ensure that national goals, objectives, and requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act, 16 U.S.C. 1801
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
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
For IFM service providers, 10 minutes for submission of a monitor deployment report; 20 minutes for the submission of an ASM availability report; 30 minutes for the submission of a safety refusal; 5 minutes for the submission of raw monitor data; 2 hours for a monitor debriefing; 30 minutes for the submission of other reports; 1 hour for the submission of biological samples; 10 hours for the submission of a new service provider application; 10 hours for an applicant response to a service provider denial; 30 minutes to request monitor training; 8 hours to rebut removal from the list of approved IFM service providers; 10 minutes to process request for an ASM; 5 minutes to notify unavailability of ASMs; 10 minutes to process request for an IFM observer in groundfish closed area; 5 minutes to notify unavailability of IFM observers; 5 minutes for the submission of monitor contact list updates; 5 minutes for the submission of monitor availability updates; 30 minutes for submission of service provider materials; and 30 minutes for the submission of service provide contracts.
In 2014, NMFS implemented Amendment 5 to the Atlantic Herring FMP to improve the collection of real-time and accurate catch information for the Atlantic herring fishery; enhance the monitoring and sampling of catch at-sea; and address bycatch issues, in particular bycatch of river herrings and shads, through responsible management.
In 2020, NMFS implemented the New England Industry Funded Monitoring (IFM) Omnibus Amendment to increase monitoring in certain FMPs, above levels required by the Standardized Bycatch Reporting Methodology (SBRM), to assess the amount and type of catch and to reduce variability around catch estimates. This amendment created a structure by which industry funding would be used in conjunction with available federal funding to pay for additional monitoring to meet FMP-specific coverage targets and required IFM in the Atlantic herring fishery.
We request the continued collection of the following information to improve monitoring and the collection of catch information in the Atlantic herring fishery:
• Observer notification requirement for permitted herring vessels to facilitate SBRM and IFM coverage;
• Requirement for vessel captains to submit a Released Catch Affidavit form documenting the discarding of unsampled catch;
• A requirement that Category A and B Atlantic herring permit holders pay for vessel at-sea monitoring costs, estimated to be up to $710 per sea day, on trips selected for IFM coverage (50% coverage target);
• The option for Category A and B Atlantic herring permit holders that fish with midwater trawl gear to obtain an IFM observer allowing the vessel to fish in groundfish closed areas and pay for the vessel's at-sea monitoring costs, estimated to be up to $818 per sea day; and
• Requirements for IFM monitor service providers to submit reports to NMFS on behalf of Category A or B Atlantic herring permitted vessels or for meeting service provider responsibilities for service provider approval and to facilitate accurate catch monitoring.
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
National Telecommunications and Information Administration (NTIA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed and continuing information collections, which will help us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before February 27, 2023.
Interested persons are invited to submit written comments by email to Kathryn Basinsky, Telecommunications Policy Specialist, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230 or by email at
Requests for additional information or specific questions related to collection activities should be directed to Kathryn Basinsky, Telecommunications Policy Specialist, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, via email at
The Secure and Trusted Communications Networks Act of 2019 (STCNA), Public Law 112-96, 133 Stat. 158 (2020) (codified as amended at 47 U.S.C. 1601-1609), tasked NTIA with establishing a program to share information regarding supply chain security risks with trusted providers of advanced communications service and trusted suppliers of communications equipment or services. Furthermore, STCNA directed NTIA to conduct regular briefings and events and engage with trusted providers of advanced communications service and trusted suppliers of communications equipment or services, particularly small businesses or those that primarily serve rural areas.
NTIA engages in several activities to satisfy the statutory obligations assigned by STCNA, including hosting a public-facing C-SCRIP website to disseminate information about the program as well as public, open-source, unclassified supply chain alerts and information, and training opportunities. The agency also distributes a bi-monthly newsletter for those who subscribe via the C-SCRIP website and conducts webinars and briefings on a variety of cybersecurity and supply chain security topics.
To tailor its engagement and more effectively and efficiently disseminate information, NTIA is seeking to collect additional biographical information from those signing up for its newsletter. Specifically, NTIA would like to collect a subscriber's name, title, employer, location (state and country), and email address. This information will enable NTIA staff to better understand the demographics of its constituents. As a result, NTIA will be able to create and distribute cybersecurity and supply chain risk information that will be more useful to its constituents and to attend events in locations where its core audience is also likely to be able to attend.
Under this proposed effort, NTIA will collect data electronically via webform on the C-SCRIP website.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) 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; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms 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
Council on Environmental Quality (CEQ).
Request for nominations.
As required by the Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, the Council on Environmental Quality (CEQ) is seeking additional member nominations from a diverse range of qualified candidates to serve on the “Carbon Dioxide Capture, Utilization and Sequestration (CCUS) Non-Federal Lands Permitting Task Force” (Non-Federal Task Force). Vacancies are anticipated to be filled by February 17, 2023.
CEQ must receive nominations by January 27, 2023.
You may submit nominations, identified by “CEQ CCUS Non-Federal Lands Permitting Task Force,” by email to
Caroline M. Gignoux, Attorney-Advisor, 730 Jackson Place NW, Washington, DC 20503, (202) 395-5750 or
The USE IT Act, Div. S, sec. 102 (d)(2)(D), Public Law 116-260, 134 Stat. 1182, directs the establishment of no less than two regionally based task forces to: (1) identify challenges and successes that permitting authorities, project developers, and operators face to permit CCUS projects in an efficient, orderly, and responsible manner; and (2) provide recommendations to improve the performance of the permitting process and regional coordination for the purpose of promoting the efficient, orderly, and responsible development of CCUS projects and carbon dioxide pipelines. The regulatory authorities and permitting frameworks differ on Federal lands and the Outer Continental Shelf, and non-Federal lands; therefore, one task force will address permitting and other challenges for CCUS projects on Federal lands and the Outer Continental Shelf, and the other task force will address permitting and other challenges for CCUS projects on non-Federal lands.
On July 28, 2022, CEQ published two notices in the
The purpose of this notice is to request additional nominations for membership on the Non-Federal Task Force, one of the two task forces that will be established under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2, and its implementing regulations at 41 CFR parts 101-6 and 102-3. A separate
Members will be selected by the Council on Environmental Quality (CEQ) Chair pursuant to the USE IT Act. As required by FACA, the Non-Federal Task Force membership will be fairly balanced in terms of the points of view represented and the functions to be performed by the Non-Federal Task Force. Members of the Non-Federal Task Force will serve without compensation. However, each member may be reimbursed for authorized travel and per diem expenses incurred while attending Non-Federal Task Force meetings in accordance with Federal Travel Regulations. The Non-Federal Task Force shall meet not less than twice each year. To the maximum extent practicable, all task forces established under this provision of the USE IT Act shall meet collectively not less than once each year.
As provided by the USE IT Act, the duties of the Non-Federal Task Force will be to:
• Inventory existing or potential Federal and state approaches to facilitate reviews associated with the deployment of CCUS projects and carbon dioxide pipelines, including best practices that avoid duplicative reviews to the extent permitted by law; engage stakeholders early in the permitting process; and make the permitting process efficient, orderly, and responsible;
• Develop common models for state-level carbon dioxide pipeline regulation and oversight guidelines that can be shared with states in the geographical area covered by the Non-Federal Task Force;
• Provide technical assistance to states in implementing regulatory requirements and models developed by the Non-Federal Task Force;
• Inventory current or emerging activities that transform captured carbon dioxide into a product of commercial value, or as an input to products of commercial value;
• Identify any priority carbon dioxide pipelines needed to enable efficient, orderly, and responsible development of CCUS projects at increased scale;
• Identify gaps in the current Federal and state regulatory framework and in existing data for the deployment of CCUS projects and carbon dioxide pipelines;
• Identify Federal and state financing mechanisms available to project developers; and
• Develop recommendations for relevant Federal agencies on how to develop and research technologies that can capture carbon dioxide; and would be able to be deployed within the region covered by the Non-Federal Task Force including any projects that have received technical or financial assistance for research under section 103(g)(6) of the Clean Air Act (42 U.S.C. 7403(g)).
The Non-Federal Task Force must include no less than one representative in each of the following categories as specified in the USE IT Act. Div. S, sec. 102 (d)(2)(D)(ii)(II), Public Law 116-260, 134 Stat.1182. Nominations are sought to fill at least one position in each category:
• Any state that requests participation in the geographical area covered by the Non-Federal Task Force;
• Developers or operators of CCUS projects or carbon dioxide pipelines;
• Nongovernmental membership organizations, the primary mission of which concerns protection of the environment;
The USE IT Act also requires one expert in each of the following fields:
• Health and environmental effects, including exposure evaluation; and
• Pipeline safety.
In addition, members may also include not less than one representative in each of the following categories at the request of a Tribal or local government:
• A local government in the geographical area covered by the Non-Federal Task Force; and
• A Tribal government in the geographical area covered by the Non-Federal Task Force.
To ensure that recommendations of the Non-Federal Task Force have considered the needs of diverse groups served by the Federal Government, opportunities will be sought to increase diversity, equity, inclusion, and accessibility for the membership of the Non-Federal Task Force. Please note that federally registered lobbyists serving in an “individual capacity” are ineligible for appointment or reappointment.
In selecting members, CEQ will consider technical expertise, coverage of broad stakeholder perspectives, diversity, and the duties of the Non-Federal Task Force as outlined in the USE IT Act. CEQ will use the following criteria to evaluate nominees:
• Background and experiences that help members contribute to the diversity of perspectives on the Non-Federal Task Force;
• Experience working for a state, Tribal, or local government on regulatory and permitting issues associated with CCUS projects and CO2 pipelines;
• CCUS and pipeline project development experience, or expertise and experience in closely related fields from a project developer, private sector perspective;
• Experience working for environmental nongovernmental organizations;
• Experience working on environmental justice issues at the national, state, or local level;
• Expertise in health and environmental effects of carbon dioxide, including exposure evaluation;
• Expertise in Federal and state financing mechanisms available to project developers;
• Expertise in the regulation, siting, and safety of carbon dioxide pipelines;
• Experience or expertise in emerging activities to transform CO2 into a product of commercial value;
• Demonstrated experience working on environmental, public health and climate change issues;
• Experience and/or responsibilities associated with Federal and state regulations and permitting requirements associated with CCUS projects and carbon dioxide pipelines, including but not limited to experience obtaining and/or issuing permits/rights of way/leases and knowledge regarding state legal requirements, processes, timeframes, costs, barriers, public engagement requirements, state environmental requirements as well as opportunities to improve/enhance all of the above;
• Executive management-level experience;
• Excellent interpersonal, oral and written communication and consensus-building skills; and
• Ability to volunteer time to attend meetings and to contribute to the duties assigned to the Non-Federal Task Force.
Taking into account the nominations CEQ received in response to its notices of July 28, 2022, CEQ is particularly interested in additional nominations for members who represent a local government in the geographical area covered by the Non-Federal Task Force; members who represent a Tribal government in the geographical area covered by the Non-Federal Task Force; members who are experts in pipeline safety; and members who have experience working on environmental justice issues at the national, state, or local level.
Council on Environmental Quality (CEQ).
Request for nominations.
As required by the Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, the Council on Environmental Quality (CEQ) is seeking additional member nominations from a diverse range of qualified candidates to serve on the “Carbon Dioxide Capture, Utilization and Sequestration (CCUS) Federal Lands and Outer Continental Shelf Permitting Task Force” (Federal and OCS Task Force). Vacancies are anticipated to be filled by February 17, 2023.
CEQ must receive nominations by January 27, 2023.
You may submit nominations, identified by “CEQ CCUS Federal Lands and OCS Permitting Task Force,” by email to
Caroline M. Gignoux, Attorney-Advisor, 730 Jackson Place NW, Washington, DC 20503, (202) 395-5750 or
The USE IT Act, Div. S, sec. 102 (d)(2)(D), Public Law 116-260, 134 Stat. 1182, directs the establishment of no less than two regionally based task forces to: (1) identify challenges and successes that permitting authorities, project developers, and operators face to permit CCUS projects in an efficient, orderly, and responsible manner; and (2) provide recommendations to improve the performance of the permitting process and regional coordination for the purpose of promoting the efficient, orderly, and responsible development of CCUS projects and carbon dioxide pipelines. The regulatory authorities and permitting frameworks differ on Federal lands and the Outer Continental Shelf, and non-Federal lands; therefore, one task force will address permitting and other challenges for CCUS projects on Federal lands and the Outer Continental Shelf, and the other task force will address permitting and other challenges for CCUS projects on non-Federal lands.
On July 28, 2022, CEQ published two notices in the
The purpose of this notice is to request additional nominations for membership on the Federal and OCS Task Force, one of the two task forces that will be established under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2, and its implementing regulations at 41 CFR parts 101-6 and 102-3. A separate
Members will be selected by the Council on Environmental Quality (CEQ) Chair pursuant to the USE IT Act. As required by FACA, the Federal and OCS Task Force membership will be fairly balanced in terms of the points of view represented and the functions to be performed by the Federal and OCS Task Force. Members of the Federal and OCS Task Force will serve without compensation. However, each member may be reimbursed for authorized travel and per diem expenses incurred while attending Federal and OCS Task Force meetings in accordance with Federal Travel Regulations. The Federal and OCS Task Force shall meet not less than twice each year. To the maximum extent practicable, all task forces established under this provision of the USE IT Act shall meet collectively not less than once each year.
As provided by the USE IT Act, the duties of the Federal and OCS Task Force will be to:
• Inventory existing or potential Federal and state approaches to facilitate reviews associated with the deployment of CCUS projects and carbon dioxide pipelines, including best practices that avoid duplicative reviews to the extent permitted by law; engage stakeholders early in the permitting process; and make the permitting process efficient, orderly, and responsible;
• Develop common models for state-level carbon dioxide pipeline regulation and oversight guidelines that can be shared with states in the geographical area covered by the Federal and OCS Task Force;
• Provide technical assistance to states in implementing regulatory requirements and models developed by the Federal and OCS Task Force;
• Inventory current or emerging activities that transform captured carbon dioxide into a product of commercial value, or as an input to products of commercial value;
• Identify any priority carbon dioxide pipelines needed to enable efficient, orderly, and responsible development of CCUS projects at increased scale;
• Identify gaps in the current Federal and state regulatory framework and in existing data for the deployment of CCUS projects and carbon dioxide pipelines;
• Identify Federal and state financing mechanisms available to project developers; and
• Develop recommendations for relevant Federal agencies on how to develop and research technologies that can capture carbon dioxide and would be able to be deployed within the region covered by the Federal and OCS Task Force including any projects that have received technical or financial assistance for research under section 103(g)(6) of the Clean Air Act (42 U.S.C. 7403(g)).
The Federal and OCS Task Force must include no less than one representative in each of the following categories as specified in the USE IT Act. Div. S, sec. 102 (d)(2)(D)(ii)(II), Public Law 116-260, 134 Stat.1182. Nominations are sought to fill at least one position in each category:
• Any state that requests participation in the geographical area covered by the Federal and OCS Task Force;
• Developers or operators of CCUS projects or carbon dioxide pipelines;
• Nongovernmental membership organizations, the primary mission of which concerns protection of the environment;
The USE IT Act also requires one expert in each of the following fields:
• Health and environmental effects, including exposure evaluation; and
• Pipeline safety.
In addition, members may also include not less than one representative in each of the following categories at the request of a Tribal or local government:
• A local government in the geographical area covered by the Federal and OCS Task Force; and
• A Tribal government in the geographical area covered by the Federal and OCS Task Force.
To ensure that recommendations of the Federal and OCS Task Force have considered the needs of diverse groups served by the Federal Government, opportunities will be sought to increase diversity, equity, inclusion, and accessibility for the membership of the Federal and OCS Task Force. Please note that federally registered lobbyists serving in an “individual capacity” are ineligible for appointment or reappointment.
In selecting members, CEQ will consider technical expertise, coverage of broad stakeholder perspectives, diversity, and the duties of the Federal and OCS Task Force as outlined in the USE IT Act. CEQ will use the following criteria to evaluate nominees:
• Background and experiences that help members contribute to the diversity of perspectives on the Federal and OCS Task Force;
• Experience working for a state, Tribal, or local government on regulatory and permitting issues associated with CCUS projects and CO
• CCUS and pipeline project development experience, or expertise and experience in closely related fields from a project developer, private sector perspective;
• Experience working for environmental nongovernmental organizations;
• Experience working on environmental justice issues at the national, state, or local level;
• Expertise in health and environmental effects of carbon dioxide, including exposure evaluation;
• Expertise in Federal and state financing mechanisms available to project developers;
• Expertise in the regulation, siting, and safety of carbon dioxide pipelines;
• Experience or expertise in emerging activities to transform CO
• Demonstrated experience working on environmental, public health and climate change issues;
• Experience and/or responsibilities associated with Federal and state regulations and permitting requirements associated with CCUS projects and carbon dioxide pipelines, including but not limited to experience obtaining and/or issuing permits/rights of way/leases and knowledge regarding state legal requirements, processes, timeframes, costs, barriers, public engagement requirements, state environmental requirements as well as opportunities to improve/enhance all of the above;
• Executive management-level experience;
• Excellent interpersonal, oral and written communication and consensus-building skills; and
• Ability to volunteer time to attend meetings and to contribute to the duties assigned to the Federal and OCS Task Force.
Taking into account the nominations CEQ received in response to its notices of July 28, 2022, CEQ is particularly interested in additional nominations for members who represent a local government in the geographical area covered by the Federal and OCS Task Force; members who represent a Tribal government in the geographical area covered by the Federal and OCS Task Force; members who are experts in pipeline safety; and members who have experience working on environmental justice issues at the national, state, or local level.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before January 27, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Todd Stephenson, 202-205-1645.
The Department 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 Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice of request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. The information collection request, State Energy Program (SEP), was previously approved on August 31, 2020, under OMB Control Number 1910-5126 and its current expiration date is August 31, 2023. This ICR will include SEP Annual Appropriations and Infrastructure Investment and Jobs Act (IIJA). This ICR makes updates to the SEP reporting metrics to ensure the requested information can be shared on an annual basis with Congress.
Comments regarding this proposed information collection must be received on or before January 27, 2023. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 881-8585.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Greg Davoren by email to the following address:
Requests for additional information or copies of the information collection instrument and instructions should be directed to Greg Davoren, EE-5W, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585-0121 or by email or phone at
This information collection request contains:
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This document of the Department of Energy was signed on November 22, 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
The license for the Moretown No.8 Hydroelectric Project No. 5944 was issued for a period ending November 30, 2022.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 5944 is issued to the Moretown Hydroelectric, LLC for a period effective December 1, 2022, through November 30, 2023, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before November 30, 2023, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Moretown Hydroelectric, LLC is authorized to continue operation of the Moretown No.8 Hydroelectric Project under the terms and conditions of the
On December 19, 2022, Allete, Inc. submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with the Minnesota Pollution Control Agency (Minnesota PCA), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6 and section 5.23(b) of the Commission's regulations,
If the Minnesota PCA fails or refuses to act on the water quality certification request on or before the above date, then the agency certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
On December 19, 2022, the Commission issued an order in Docket No. EL23-12-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether Basin Electric Power Cooperative's revised proposed 2023 Rate Schedule A is unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful and to establish a refund effective date.
The refund effective date in Docket No. EL23-12-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL23-12-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2021), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
This is a supplemental notice in the above-referenced proceeding of NTUA Generation-Utah, 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 January 10, 2023.
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
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i.
j. Lewis Ridge Pumped Storage, LLC. (Lewıs Rıdge) filed its request to use the Traditional Licensing Process on October 21, 2022. Lewıs Rıdge provided public notice of its request on October 19, 2022. In a letter dated December 21, 2022, the Director of the Division of Hydropower Licensing approved Lewıs Rıdge's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Kentucky State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Lewis Ridge as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. Lewis Ridge filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed on the Commission's website (
o. Register online at
On December 19, 2022, Allete, Inc. submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with the Minnesota Pollution Control Agency (Minnesota PCA), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6 and section 5.23(b) of the Commission's regulations,
If the Minnesota PCA fails or refuses to act on the water quality certification request on or before the above date, then the agency certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
On December 21, 2022, Eagle Creek Racine Hydro, LLC submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with the Ohio Environmental Protection Agency (Ohio EPA), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6 and section 5.23(b) of the Commission's regulations,
If the Ohio EPA fails or refuses to act on the water quality certification request on or before the above date, then the agency certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on December 12, 2022, City of Pasadena, California submits tariff filing: City of Pasadena 2023 Transmission Revenue Balancing Account Adjustment, to be effective January 1, 2023.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Foxhound Solar, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 10, 2023.
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.
The Environmental Protection Agency has submitted an information collection request (ICR), NESHAP for Clay Ceramics Manufacturing, Glass Manufacturing, and Secondary Nonferrous Metals Processing Area Sources (EPA ICR Number 2274.07, OMB Control Number 2060-0606), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2023. Public comments were previously requested, via the
Additional comments may be submitted on or before January 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0040, to: (1) EPA online using
The EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats,
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-0833; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at:
The new source is not expected to incur capital costs; therefore, there is no change in the capital/startup costs from the most-recently approved ICR. There is an increase in O&M costs due to the use of updated labor rates associated with inspections of emission control systems for glass manufacturing facilities. This ICR uses the technical labor rate from the most-recent Bureau of Labor Statistics report (September 2021) to calculate respondent burden costs associated with inspection of emission control systems.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Hospital/Medical/Infectious Waste Incinerators (EPA ICR Number 1730.12, OMB Control Number 2060-0363) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through February 28, 2023. Public comments were previously requested via the
Additional comments may be submitted on or before January 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0082, to (1) EPA online using
The EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Muntasir Ali, Sector Policies and
Supporting documents, which explain in detail the information that the EPA will be collecting are available, in the public docket for this ICR. The docket can be viewed online at
In general, all NSPS standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NSPS.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted a renewal of an information collection request (ICR), Data Requirements Rule for the 1-Hour Sulfur Dioxide Primary National Ambient Air Quality Standard (EPA ICR Number 2495.05, OMB Control Number 2060-0696) to Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). This notice is a proposed extension of the ICR, which is currently approved through December 31, 2022. Public comments were previously requested via the
Additional comments may be submitted on or before January 27, 2023.
Submit your comments to EPA, referencing Docket ID No. EPA-HQ-OAR-2013-0711 online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Sydney Lawrence, Office of Air Quality Planning and Standards, Air Quality Policy Division, C504-05, U.S. Environmental Protection Agency, Research Triangle Park, NC; telephone number: (919) 541-4768; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
The prior renewal of this ICR estimated a maximum possible burden of $5,100,000 annually for modeling sources. This ICR renewal, estimating a range of $150,700 to $3,014,000 annually, reflects a decrease in the maximum possible burden of $2,086,000 annually for modeling sources. This decrease is due to the reduced number of listed sources for which states chose to conduct air quality modeling to meet their DRR requirements.
Federal Communications Commission.
Notice.
In this document, the Media Bureau extends the comment and reply comment deadlines for the Second Notice of Proposed Rulemaking Regarding Sponsorship Identification Requirements for Foreign Government-Provided Programming.
The extended comment deadline is January 9, 2023, and the extended reply comment deadline is January 24, 2023.
You may submit comments, identified by MB Docket No. 20-299, by any of the following methods:
•
•
Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020).
Radhika Karmarkar, Media Bureau, Industry Analysis Division,
This is a summary of the Media Bureau's Public Notice, MB 20-299, released on December 13, 2022. The complete text of this document is available electronically via the search function on the FCC's Electronic Document Management System (EDOCS) web page at
1. By this Public Notice, the Media Bureau extends the deadlines for filing comments and reply comments in the above-captioned proceeding. On October 6, 2022, the Commission released a Second Notice of Proposed Rulemaking (Second Notice) seeking comment on new rules to strengthen the process for identifying foreign governmental entities. The Second Notice specified comment and reply comments dates of 30 and 45 days, respectively, after
2. On December 7, 2022, the Multicultural Media, Telecom and internet Council (MMTC) and the National Association of Broadcasters (NAB) (collectively, Joint Filers) requested an extension of the comment and reply comment filing deadlines until January 9 and January 24, 2023, respectively. The Joint Filers correctly note that “three significant Federal holidays” occur during the comment cycle. Citing holiday-related closures, the Joint Filers explain how it is “challenging” under the original filing deadline “to gather relevant information from individual broadcasters and lessees affected by the proposed rules, build useful consensus around the issues in this proceeding, and draft comments and reply comments.” A coalition of religious organizations (the Religious Programmers) filed in support of the Joint Filers' Motion, also noting the difficulties presented by the intervening holidays.
3. As set forth in section 1.46(a) of the Commission's rules, the Commission's policy is that extensions of time shall not be routinely granted. We find, however, that the Joint Filers have provided sufficient justification to warrant grant of their requested extension. As an extension should enable interested parties to present more complete and thoughtful comments to the Commission, we agree with the Joint Filers that the extension should not disadvantage any party or cause significant delay in the resolution of this proceeding.
The Commission hereby gives notice of filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than January 12, 2023.
1.
Board of Governors of the Federal Reserve System.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request (ICR) titled “Distribution of Traceable Opioid Material Kits (TOM Kits) across U.S. and International Laboratories” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on 09/16/2022 to obtain comments from the public and affected agencies. CDC received one comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Distribution of Traceable Opioid Material Kits (TOM Kits) across U.S. and International Laboratories (OMB Control No. 0920-1313, expiration date 12/31/2022)—Revision—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
In response to the Health and Human Services (HHS) Acting Secretary's 2017 and ongoing public health emergency declaration on opioids, the Centers for Disease Control and Prevention (CDC) has led the development of Traceable Opioid Material Kits (TOM Kits) to support detection of emerging opioids. CDC maintains the contents of the TOM Kits based on new needs identified, in part, through the U.S. Drug Enforcement Agency (DEA) Emerging Threat Reports. For example, the DEA 2018 data indicated that fentanyl and fentanyl-related compounds accounted for approximately 76 percent of their opioid identifications.
The CDC is requesting a three-year Paperwork Reduction Act (PRA) clearance for a revision of this ICR (formerly known as “Distribution of Traceable Opioid Material Kits [TOM Kits] across U.S. Laboratories”)(OMB Control No. 0920-1313). As part of the proposed revisions, CDC will be expanding its program to include a new line of TOM Kits, the Emerging Drug Panel (EDP) Kits. For the EDP Kits, non-opioid compounds will be identified and updated by searching recent lists put out by the DEA and the Center for Forensic Science Research and Education (CFSRE). These lists provide data on all classes of drugs that were recently identified in the field and provide recommendations on which drugs should be included in testing. They are updated several times a year and keep up with the changing drug landscape in the United States. For the current round, EDP Kits will include synthetic cannabinoids, stimulants, hallucinogens, and benzodiazepines.
CDC will distribute TOM Kits through a single vendor, which will manufacture the test kits. The CDC vendor will distribute these kits to domestic laboratories, as previously approved under CDC contract. As a revision, the CDC vendor will distribute these test kits to international laboratories in partnership with the United Nations and under a separate contract with the International Narcotics Control Board (INCB) (hereafter, collectively coined the “UN”). The UN, and not the CDC, is paying the vendor to ship the kits to international requesters.
TOM Kits are not intended for diagnostic use and are free to domestic and international laboratories in the public, private, clinical, law enforcement, research, and public health domains. The CDC vendor collects both application and laboratory information on domestic laboratories when they apply for test kits. International laboratories that apply for test kits through the UN will be directed to complete and share their laboratory information with the vendor, but not with the CDC. This information is used to prioritize which laboratories will receive kits when quantities are limited. The brief web-based surveys will allow the CDC to: (1) determine what service the recipient laboratory performs; and to (2) equitably distribute test kits based on the analysis techniques and matrices used by the recipient laboratory.
Over the past three years, CDC has received 1,472 requests from interested laboratories (approximately 490 requests per year) and has distributed 3,007 TOM Kits. Based on this experience and with the addition of EDP Kits, we anticipate that up to 600 domestic laboratories will request test kits per year. Given that each application will take six minutes, the annual time burden for 600 domestic laboratories will be 60 hours. CDC will add 20 additional annual burden hours for the international distribution of test kits. We estimate that 300 international partner laboratories will apply for test kits per year with the UN, which in turn will direct these laboratories to complete the brief four-minute survey on laboratory information on the CDC vendor website.
There is no burden on the respondents other than their time. CDC estimates a total estimated time burden of 80 hours per year.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than February 27, 2023.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the ICR title for reference.
Grant dollars are awarded annually; therefore, this information is needed annually by the program in order to measure effective use of grant dollars consistently among all the grantees.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal Claims, 717 Madison Place NW, Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, Maryland 20857; (301) 443-6593, or visit our website at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the United States Court of Federal Claims at the address listed above (under the heading “For Further Information Contact”), with a copy to HRSA addressed to Director, Division of Injury Compensation Programs, Health Systems Bureau, 5600 Fishers Lane, 08N146B, Rockville, Maryland 20857. The Court's caption (Petitioner's Name v. Secretary of HHS) and the docket number assigned to the petition should be used as the caption for the written submission. Chapter 35 of title 44, United States Code, related to paperwork reduction, does not apply to information required for purposes of carrying out the Program.
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that a meeting is scheduled to be held for the Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (PACCARB). The meeting will be open to the public via Zoom and teleconference; a pre-registered public comment session will be held during the meeting. Pre-registration is required for members of the public who wish to present their comments at the meeting via Zoom/teleconference. Individuals who wish to send in their written public comment should send an email to
The meeting is scheduled to be held on January 24-25, 2023, from 10 a.m. to 4 p.m. ET (times are tentative and subject to change). The confirmed times and agenda items for the meeting will be posted on the website for the PACCARB at
Instructions regarding attending this meeting virtually will be posted at least one week prior to the meeting at:
Jomana Musmar, M.S., Ph.D., Designated Federal Officer, Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria, Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services, 1101 Wootton Parkway, Rockville, MD 20852. Phone: 202-746-1512; Email:
The Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria (PACCARB), established by Executive Order 13676, is continued by section 505 of Public Law 116-22, the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (PAHPAIA). Activities and duties of the Advisory Council are governed by the provisions of the Federal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U.S.C. app.), which sets forth standards for the formation and use of Federal advisory committees.
The PACCARB shall advise and provide information and recommendations to the Secretary regarding programs and policies intended to reduce or combat antibiotic-resistant bacteria that may present a public health threat and improve capabilities to prevent, diagnose, mitigate, or treat such resistance. The PACCARB shall function solely for advisory purposes.
Such advice, information, and recommendations may be related to improving: the effectiveness of antibiotics; research and advanced research on, and the development of, improved and innovative methods for combating or reducing antibiotic resistance, including new treatments, rapid point-of-care diagnostics, alternatives to antibiotics, including alternatives to animal antibiotics, and antimicrobial stewardship activities; surveillance of antibiotic-resistant bacterial infections, including publicly available and up-to-date information on resistance to antibiotics; education for health care providers and the public with respect to up-to-date information on antibiotic resistance and ways to reduce or combat such resistance to antibiotics related to humans and animals; methods to prevent or reduce the transmission of antibiotic-resistant bacterial infections; including stewardship programs; and coordination with respect to international efforts in order to inform and advance the United States capabilities to combat antibiotic resistance.
The January 24-25, 2023, public meeting will continue the PACCARB's discussion about how antimicrobial resistance can be integrated into existing national pandemic preparedness plans. The focus of the meeting will be exploring the challenges regarding communicating science and antimicrobial resistance during a pandemic, as well as exploring how to address equity and vulnerable populations in these plans. The meeting agenda will be posted on the PACCARB website at
Members of the public will have the opportunity to provide comments live during the January meeting by pre-registering online at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Diabetes and Digestive and Kidney Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Diabetes and Digestive and Kidney Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, TEP-8A: SBIR Contract Review, February 1, 2023, 9:30 a.m. to 5:30 p.m., National Cancer Institute at Shady Grove, Room 7W030, 9609 Medical Center Drive, Rockville, Maryland, 20850 which was published in the
This notice is being amended to change the meeting time from 9:30 a.m.-5:30 p.m. to 10:00 a.m.-2:00 p.m. on February 1, 2023. The meeting date and location will stay the same. The meeting is closed to public.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting website
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.
Open: 12:20 p.m. to 1:45 p.m.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council on Aging.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following 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.
Notice is hereby given of a change in the meeting of the National Institute of Diabetes and Digestive and Kidney Diseases Special Emphasis Panel, January 20, 2023, 1:00 p.m. to January 20, 2023, 03:00 p.m., National Institutes of Health, Democracy II, 6707 Democracy Blvd., Bethesda, MD, 20892 which was published in the
The meeting notice is amended to change the date of the meeting from January 20, 2023 to January 27, 2023. The time of the meeting will remain 1:00 p.m. to 3:00 p.m. The meeting is closed to the public.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0056, abstracted below, to OMB for review and approval of a revision of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. This collection combines TSA's voluntary Pipeline Corporate Security Review (PCSR) program with the mandatory requirements under the TSA Security Directive (SD) Pipeline-2021-02 series. The collection allows TSA to assess the current security practices in the pipeline industry through TSA's PCSR program, which is part of the larger domain awareness, prevention, and protection program supporting TSA's and the Department of Homeland Security's missions. The collection also allows for the continued institution of mandatory cybersecurity requirements under the TSA SD Pipeline-2021-02 series. The updated ICR reflects changes to collection requirements based on TSA's update to the SD Pipline-2021-02 series, released on July 21, 2022.
Send your comments by January 27, 2023. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Christina A. Walsh, TSA PRA Officer, Information Technology (IT), TSA-11, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6011; telephone (571) 227-2062; email
TSA published a
This collection is separate from those associated with the requirements of TSA SD Pipeline 2021-01.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA has historically assessed industry security practices through its PCSR program.
On July 15, 2021, OMB approved TSA's requests for an emergency revision of this information collection, allowing for the institution of mandatory requirements issued in TSA SD Pipeline-2021-02 on July 19, 2021.
On July 21, 2022, TSA issued a substantive revision to the series, SD Pipeline 2021-02C. This revision provides owner/operators with more flexibility to meet the intended security outcomes while ensuring sustainment of the cybersecurity enhancements accomplished through this SD series. Overall, SD Pipeline-2021-02C changed the cybersecurity requirements from a prescriptive approach to a performance-based approach focused on certain security outcomes. The revision also clarified that the requirements apply to Critical Cyber Systems, as defined in the SD, and changed cybersecurity assessment requirements.
On July 29, 2022, OMB approved TSA's requests for the emergency revision of this information collection, allowing for the implementation of the revisions in SD Pipeline-2021-02C.
SD Pipeline 2021-02C requires identified owner/operators to meet three general requirements: (1) Establish and implement a TSA-approved Cybersecurity Implementation Plan; (2) develop and maintain an up-to-date Cybersecurity Incident Response Plan; and (3) establish a Cybersecurity Assessment Program and submit an annual plan. In addition, owner/operators must make records to establish compliance with the SD available to TSA upon request for inspection and/or copying.
Submissions by pipeline owner/operators in compliance with the voluntary PCSR or the mandatory SD Pipeline-2021-02 series requirements are deemed Sensitive Security Information (SSI) and are protected in accordance with procedures meeting the transmission, handling, and storage requirements of SSI in 49 CFR part 1520.
TSA is changing the name of OMB control number 1652-0056 from “Pipeline Corporate Security Review (PCSR)” to “Pipeline Corporate Security Reviews (PCSR) and Security Directives” to more accurately represent the information collection. TSA is also revising the information collection to remove a portion of the cybersecurity questions from the PCSR workbook, which are covered in a separate ICR, 1652-0050 Critical Facility Information of the Top 100 Most Critical Pipelines. As a result, TSA removed the majority (~ 60) of the cybersecurity questions in the PCSR workbook, moving from 210 to 160 questions, which resulted in a burden reduction to the voluntary collection.
TSA is seeking renewal of this information collection for the maximum three-year approval period.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received an application to amend the incidental take permit (PRT-840414) issued for the existing
To ensure consideration, please send your written comments by January 27, 2023.
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Mr. Jonathan Snyder, Assistant Field Supervisor, Carlsbad Fish and Wildlife Office (see
We, the U.S. Fish and Wildlife Service (Service), have received an application from the County of San Diego to amend the incidental take permit (PRT-840414) issued for the existing Multiple Species Conservation Program County of San Diego Subarea Plan (MSCP Subarea Plan). We also announce a public comment period. We invite comments from the public and Federal, Tribal, State, and local governments.
We have made a preliminary determination that amendment of the permit is neither a major Federal action that will significantly affect the quality of the human environment within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
On March 17, 1998, the Service issued an incidental take permit (PRT-840414), pursuant to section 10(a)(1)(B) of the Endangered Species Act (16 U.S.C. 1531
The applicant is seeking an amendment to their incidental take permit, consistent with section 1.14.2 of the MSCP Subarea Plan Implementing Agreement, to modify the MSCP Subarea Plan boundary to add 77.02 acres of land for conservation purposes (
The conservation lands are in an unincorporated portion of northern San Diego County in the community of Ramona, approximately 0.5 mile north of the existing MSCP Subarea Plan boundary. The conservation land consists of four parcels (Assessor's Parcel Numbers 283-055-28-00, 283-055-29-00, 283-055-30-00, 283-055-31-00, and 283-055-31-00) located northeast of the intersection of Highland Valley and Dye roads, south of State Route 67 (SR-67), and west of Etcheverry Street. The parcels support vernal pool, southern willow scrub, freshwater marsh, and nonnative grassland vegetation communities, which include potential habitat for the federally listed endangered San Diego fairy shrimp (
If you wish to comment on the permit application, proposed HCP amendment, and associated documents, you may submit comments by any of the methods noted in the
Written comments we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comments, 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.
We provide this notice under section 10(c) of the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior; National Oceanic and Atmospheric Administration, Commerce.
Notice of intent; request for comments.
The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration intend to prepare a draft monument management plan for the Northeast Canyons and Seamounts Marine National Monument, which was established by Presidential Proclamation 9496 and updated by Presidential Proclamation 10287. When the draft plan is complete, we will advertise its availability and seek public comment. We furnish this notice to advise the public and Federal, Tribal, State, and local governments and agencies of our intentions, and to obtain suggestions and information on the scope of issues to consider during the planning process. An environmental assessment to evaluate the potential effects of various management alternatives will also be prepared. The environmental assessment will provide resource managers with the information needed to determine if the potential effects may be significant and warrant preparation of an environmental impact statement, or if the potential impacts lead to a finding of no significant impact.
To ensure consideration, we must receive your written comments by January 27, 2023.
Please send your written comments or requests for more information by one of the following methods:
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•
For more information, please see Public Availability of Comments.
Brittany Petersen, U.S. Fish and Wildlife Service, Marine National Monument Superintendent, by phone at 413-253-8329, or via email at
On October 8, 2021, President Joseph Biden issued Proclamation 10287 (86 FR 57349, October 15, 2021), charging the Secretaries of the managing agencies, the Department of the Interior and the Department of Commerce (Departments), to prepare a joint management plan for the Northeast Canyons and Seamounts Marine National Monument by September 15, 2023.
On September 15, 2016, President Barack Obama issued Presidential Proclamation 9496 (81 FR 65161, September 21, 2016), establishing the Northeast Canyons and Seamounts Marine National Monument (Monument) under the authority of the Antiquities Act of 1906. The canyon and seamount area contains objects of historic and scientific interest that are situated upon lands owned or controlled by the Federal Government—the Monument was established for the purpose of preserving these objects for the public interest. More information about the Monument's establishment and regulated activities can be found in Presidential Proclamation 9496 (81 FR 65161, September 21, 2016).
The Monument is composed of two units, located in the Atlantic Ocean approximately 130 miles (mi) (209 kilometers (km)) southeast of Cape Cod, Massachusetts. The Canyons Unit includes three underwater canyons—Oceanographer, Gilbert, and Lydonia—and covers approximately 941 square mi (mi
The Secretary of the Interior and Secretary of Commerce share management responsibilities for the Monument, as directed by Presidential Proclamations 9496 and 10287, under their applicable legal authorities. The Proclamations require the Secretaries to prepare a management plan within their respective authorities for the Monument and promulgate and implement regulations that address specific actions necessary for the proper care and management of the Monument. With this notice, the Departments are commencing development of the Monument Management Plan (MMP, plan). The Departments will work cooperatively under the U.S. Fish and Wildlife Service's (Service) lead in this process and intend to cooperatively coordinate in the development and timing of this planning process and implementation of the plan.
The Northeast Canyons and Seamounts Marine National Monument harbors exceptional geological features, in an area where the Gulf Stream and the Deep Western Boundary Current meet, creating the ideal conditions that result in a nutrient-rich, biodiverse area in the ocean. This area of productivity draws in a diversity of ocean life and supplies these creatures with nursery, feeding, and migration habitats.
The submarine canyons and seamounts create dynamic currents and eddies that enhance biological productivity and provide feeding and wintering grounds for seabirds; pelagic species, including whales, dolphins, and turtles; and highly migratory fish, such as tunas, billfish, and sharks. The warm Gulf Stream conditions support at least 54 species of corals. The corals, together with other structure-forming fauna such as sponges and anemones, create a foundation for vibrant deep-sea ecosystems, providing food, spawning habitat, and shelter for an array of fish and invertebrate species. The abundant waters are a beacon for the Atlantic's seabirds, including Atlantic puffins (
Oceanographer, Gilbert, and Lydonia Canyons are among the largest of the major submarine canyons that line the U.S. continental shelf. They extend approximately 22 to 30 mi in length (35 to 48 km), and range in depth from approximately 500 feet (ft) (152 meters (m)) at their heads to around 7,700 ft (2,345 m) where they intersect with the continental rise, making them deeper than the Grand Canyon. Active erosion and powerful ocean currents transport sediments and organic carbon through the canyons, resulting in habitats for sponges, corals, and other invertebrates that filter food from the water to flourish, and for larger species such as squid, octopus, skates, flounders, and crabs. Major oceanographic features, such as currents, temperature gradients, eddies, and fronts, occur on a large scale and influence the distribution patterns of such highly migratory oceanic species. These unique conditions support an area with some of the highest diversity of marine mammals along the East Coast of the United States.
Bear, Physalia, Mytilus, and Retriever Seamounts are extinct underwater volcanoes, and the only seamounts in the U.S. Atlantic Exclusive Economic Zone (EEZ). They form the beginning of the New England Seamount chain, which stretches halfway across the western North Atlantic Ocean. Bear Seamount is approximately 100 million years old and the largest of the four; it rises approximately 8,200 ft (2,499 m) from the seafloor to within 3,280 ft (1,000 m) of the sea surface. Its summit is over 12 mi (19 km) in diameter. The three smaller seamounts reach to within 6,500 ft (1,981 m) of the sea surface. All
The MMP's format will include elements similar to a National Wildlife Refuge System comprehensive conservation plan (CCP), and the planning process for those elements will be conducted in a manner similar to the CCP planning and public involvement process. The MMP will be updated every 15 years.
We will conduct environmental reviews of various management alternatives and develop an environmental assessment (EA) in accordance with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
The Service, as lead agency for NEPA purposes, will also designate and involve as cooperating agencies the Department of Commerce, through the National Oceanic and Atmospheric Administration (NOAA), the Department of Defense, and the Department of State.
The Service and NOAA will conduct the planning process in a manner that will provide participation opportunities for the public, Tribes, Federal and local government agencies, and other interested parties. At this time, we are seeking ideas and comments to help guide the management of the Monument. Potential topics may include, but are not limited to:
Because the Proclamations prohibit commercial fishing within the Monument (with the exception of red crab and lobster until September 15, 2023), the MMP will not consider management alternatives that allow commercial fishing. Opportunities for additional public input will be announced throughout the planning process.
The Service and NOAA will consider your comments during development of the Draft MMP/EA.
Before including your address, phone number, 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 comments to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice of Tribal consultation and request for comments.
The Bureau of Reclamation (Reclamation) is publishing this notice to announce that Reclamation plans to consult with federally recognized Indian Tribes in Reclamation's 17 western states on implementation of the Inflation Reduction Act as it applies to Tribes.
The Tribal consultation will be held virtually on Tuesday, January 24, 2023, from 2 p.m. to approximately 5 p.m. (MST). Additional consultations will be scheduled and announced through a future
The virtual meeting held on Tuesday, January 24, 2023, may be accessed at
Send written comments on the consultation to
Mr. Jeffrey K. Morris, Program Manager, Native American and International Affairs Office, Bureau of Reclamation, telephone (303) 445-3373, email at
Under the Inflation Reduction Act of 2022, Reclamation received $550 million for Domestic Water Projects, $25 million for Canal Improvements Projects, and $4 billion for the Drought Mitigation in the Reclamation states (Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, and Wyoming). Federally recognized Indian Tribes located in the Reclamation states are eligible to participate in all of these programs. Reclamation also received $12.5 million for Emergency Drought Relief for Tribes that are impacted by the operation of a Reclamation water project in the 17 western states.
Reclamation conducted a listening session on the Inflation Reduction Act for Tribes on September 30, 2022. Material provided in the listening session and additional information on the impacts of the Inflation Reduction Act on Reclamation is posted at this website:
Reclamation is making it a priority to garner input from Tribal leaders on the important opportunities and decisions related to the Inflation Reduction Act as it relates to Indian Tribes in the Reclamation states. These programs will be implemented over a few years, which may require that we consult at multiple decision points. With this consultation, Reclamation is seeking Tribal input to inform early planning decisions.
Bureau of Reclamation, Interior.
Notice of call for nominations.
The U.S. Department of the Interior (Interior) proposes to appoint members to the Glen Canyon Dam Adaptive Management Work Group (AMWG). The Secretary of the Interior (Secretary), acting as administrative lead, is soliciting nominations for qualified persons to serve as members of the AMWG.
Nominations must be postmarked by February 13, 2023.
Nominations should be sent to Mr. Daniel Picard, Deputy Regional Director, Bureau of Reclamation, 125 S. State Street, Room 8100, Salt Lake City, UT 84138, or submitted via email to
Kathleen Callister, Manager, Resources Management Division, at (801) 524-3781, or by email at
The Grand Canyon Protection Act (Act) of October 30, 1992, Public Law 102-575; and the Federal Advisory Committee Act, as amended, 5 U.S.C. appendix 2 authorized creation of the AMWG to provide recommendations to the Secretary in carrying out the responsibilities of the Act to protect, mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established, including but not limited to, natural and cultural resources and visitor use.
The duties or roles and functions of the AMWG are in an advisory capacity only. They are to: (1) establish AMWG operating procedures, (2) advise the Secretary in meeting environmental and cultural commitments including those contained in the Record of Decision for the Glen Canyon Dam Long-Term Experimental and Management Plan Final Environmental Impact Statement and subsequent related decisions, (3) recommend resource management objectives for development and implementation of a long-term monitoring plan, and any necessary research and studies required to determine the effect of the operation of Glen Canyon Dam on the values for which Grand Canyon National Park and Glen Canyon Dam National Recreation Area were established, including but not limited to, natural and cultural resources, and visitor use, (4) review and provide input on the report identified in the Act to the Secretary, the Congress, and the Governors of the Colorado River Basin States, (5) annually review long-term monitoring data to provide advice on the status of resources and whether the Adaptive Management Program (AMP) goals and objectives are being met, and (6) review and provide input on all AMP activities undertaken to comply with applicable laws, including permitting requirements.
Prospective members of AMWG need to have a strong capacity for advising individuals in leadership positions, teamwork, project management, tracking relevant Federal government programs and policy making procedures, and networking with and representing their stakeholder group. Membership from a wide range of disciplines and professional sectors is encouraged.
Members of the AMWG are appointed by the Secretary and are comprised of:
a. The Secretary's Designee, who serves as Chairperson for the AMWG.
b. One representative each from the following entities: The Secretary of Energy (Western Area Power Administration), Arizona Game and Fish Department, Hopi Tribe, Hualapai Tribe, Navajo Nation, San Juan Southern Paiute Tribe, Southern Paiute Consortium, and the Pueblo of Zuni.
c. One representative each from the Governors from the seven basin States: Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.
d. Representatives from the general public as follows: two from environmental organizations, two from the recreation industry, and two from contractors who purchase Federal power from Glen Canyon Powerplant.
e. One representative from each of the following Interior agencies as ex-officio non-voting members: Bureau of Reclamation, Bureau of Indian Affairs, U.S. Fish and Wildlife Service, and National Park Service.
At this time, we are particularly interested in applications from representatives of the following:
a. one each from the basin states of Nevada and Utah;
b. one from the Native American Tribes of Hopi, Navajo Nation, and the Pueblo of Zuni;
c. two from environmental organizations;
d. one from the recreation industry.
After consultation, the Secretary will appoint members to the AMWG. Members will be selected based on their individual qualifications, as well as the overall need to achieve a balanced representation of viewpoints, subject matter expertise, regional knowledge, and representation of communities of interest. AMWG member terms are limited to 3 years from their date of appointment. Following completion of their first term, an AMWG member may request consideration for reappointment to an additional term. Reappointment is not guaranteed.
Typically, AMWG will hold two in-person meetings and one webinar meeting per fiscal year. Between meetings, AMWG members are expected to participate in committee work via conference calls and email exchanges. Members of the AMWG and its subcommittees serve without pay. However, while away from their homes or regular places of business in the performance of services of the AMWG, members may be reimbursed for travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the government service, as authorized by 5 U.S.C. 5703.
Nominations should include a resume that provides an adequate description of the nominee's qualifications, particularly information that will enable Interior to evaluate the nominee's potential to meet the membership requirements of the AMWG and permit Interior to contact a potential member. Please refer to the membership criteria stated in this notice.
Any interested person or entity may nominate one or more qualified
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 9) of the presiding administrative law judge (“ALJ”) granting the complainants' motion for leave to amend the complaint and notice of investigation to add ITI Hong Kong Co., Ltd of Tsuen Wan, Hong Kong (“ITI”) as an additional respondent.
Lynde Herzbach, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3228. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On October 24, 2022, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based on a complaint filed by EDST, LLC and Quext IoT, LLC, both of Lubbock, Texas (collectively, “Complainants”).
The Commission previously terminated the investigation as to respondent Huarifu based on Complainants' partial withdrawal of the complaint. Order No. 5 (Nov. 9, 2022),
On December 1, 2022, Complainants filed an unopposed motion to amend the complaint to add ITI as a respondent. No response to the unopposed motion was filed.
On December 7, 2022, the ALJ issued the subject ID (Order No. 9) granting Complainants' unopposed motion for leave to amend the complaint and notice of investigation. Order No. 9 (December 7, 2022). The subject ID finds that Complainants' unopposed motion is supported by good cause pursuant to Commission Rule 210.14(b) (19 CFR 210.14(b)) and that there is no prejudice to any party if the motion is granted.
No party petitioned for review of the subject ID.
The Commission has determined not to review the subject ID (Order No. 9). ITI is added as a respondent to the investigation.
The Commission vote for this determination took place on December 21, 2022.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty orders on emulsion styrene-butadiene rubber (ESBR) from Brazil, Mexico, Poland, and South Korea would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days.
December 22, 2022.
Tyler Berard (202-205-3354), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference, if deemed necessary, to be held at 9:30 a.m. on May 19, 2023. Parties shall file and serve written testimony and presentation slides in connection with their presentation at the hearing by no later than 4:00 p.m. on May 22, 2023. Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), and 207.24 of the Commission's rules. Parties must submit any request to present a portion of their hearing testimony
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
The Commission has determined that these reviews are extraordinarily complicated and therefore has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C.1675(c)(5)(B).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it will proceed with a full review pursuant to the Tariff Act of 1930 to determine whether revocation of the antidumping duty order on steel nails from the United Arab Emirates would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the review will be established and announced at a later date.
December 5, 2022.
Alejandro Orozco (202-205-3177), 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 through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
On December 5, 2022, the Commission determined that it should proceed to a full review in the subject five-year review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). The Commission found that both the domestic and respondent interested party group responses to its notice of institution (87 FR 53777, September 1, 2022) were adequate. A record of the Commissioners' votes will be available from the Office of the Secretary and at the Commission's website.
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection (IC) is also being published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until February 27, 2023.
If you have additional comments regarding the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, contact: Jennifer Scott, Firearms Enforcement Specialist, Firearms Industry Programs Branch, by mail at 99 New York Avenue NE, Mail Stop 6.N-518, Washington, DC 20226, email at
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;
• Evaluate whether and, if so, how the quality, utility, and clarity of the information to be collected can be enhanced; 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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If additional information is required contact: Robert Houser, Department Clearance Officer, Policy and Planning Staff, Office of the Chief Information Officer, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, Mail Stop 3.E-206, Washington, DC 20530.
Drug Enforcement Administration, Justice.
Notice of application.
Isosciences, LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before February 27, 2023. Such persons may also file a written request for a hearing on the application on or before February 27, 2023.
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 November 11, 2022, Isosciences, LLC, 340 Mathers Road, Ambler, Pennsylvania 19002-3420, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture bulk controlled substances for use in analytical testing. In reference to drug codes 7360 (Marihuana) and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetics. No other activities for these drug codes are authorized for this registration.
National Credit Union Administration (NCUA).
Notice.
The National Credit Union Administration (NCUA) will submit the following information collection requests 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.
Comments should be received on or before January 27, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Venetia Eldridge at (703) 518-1564, emailing
By Melane Conyers-Ausbrooks, Secretary of the Board, the National Credit Union Administration, on December 21, 2022.
National Science Foundation.
Notice of permit applications received.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act in the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by January 27, 2023. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314 or
Andrew Titmus, ACA Permit Officer, at the above address, 703-292-4479.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541, 45 CFR 671), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Enter Antarctic Specially Protected Area. The applicant seeks an ACA permit to enter Antarctic Specially Protected Areas (ASPA) for the purposes of educational visits to historic huts at Cape Evans, Cape Royds, and Hut Point. All visits would be in accordance with the management plans for each ASPA.
ASPA 155—Cape Evans, Ross Island; ASPA 157—Backdoor Bay, Cape Royds, Ross Island; ASPA 158—Hut Point, Ross Island.
February 15, 2023-March 15, 2023.
National Science Foundation.
Notice announcing updated penalty inflation adjustments for civil monetary penalties for 2023.
The National Science Foundation (NSF or Foundation) is providing notice of its adjusted maximum civil monetary penalties, effective January 15, 2023. These adjustments are required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
Bijan Gilanshah, Assistant General Counsel, Office of the General Counsel, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314. Telephone: 703.292.5055.
On June 27, 2016, NSF published an interim final rule amending its regulations to adjust, for inflation, the maximum civil monetary penalties that may be imposed for violations of the Antarctic Conservation Act of 1978 (ACA), as amended, 16 U.S.C. 2401
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a finding of no significant impact (FONSI) and accompanying environmental assessment (EA) for a requested exemption from certain NRC requirements regarding the Controlled Area Boundary (CAB) for the San Onofre Nuclear Generating Station (SONGS) located in San Diego County, California. Based on the analysis in the EA, the NRC staff has concluded that there will be no significant impacts to environmental resources from the requested exemption and, therefore, a FONSI is appropriate.
The EA and FONSI referenced in this document are available on December 28, 2022.
Please refer to Docket ID NRC-2022-0219 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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Jean Trefethen, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-0867, email:
The NRC staff has evaluated the environmental impacts of a requested exemption from paragraph 72.106(b) of title 10 of the
The requested exemption is an administrative action and does not involve any construction or ground disturbing activities. The EA evaluated any environmental impacts including impacts to occupational health and impacts from potential acts of terrorism. The NRC has concluded that there are no impacts to land, air, or water resources. The probability of a significant radioactive release caused by a terrorist attack remains very low, and the potential health and land contamination effects of the most severe plausible attack would not be altered by the proposed CAB as compared to the existing CAB.
Based on its review of the proposed action, in accordance with the requirements in 10 CFR part 51, the NRC staff has concluded that the requested exemption to the ISFSI CAB boundary will not have a significant environmental impact as discussed in the EA and will not significantly affect the quality of the environment. Therefore, the NRC staff has determined, pursuant to 10 CFR 51.31, that preparation of an environmental impact statement is not required for the proposed action and a FONSI is appropriate.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory
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This Notice will be published in the
On December 8, 2022, Nasdaq MRX, LLC (“MRX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
On December 19, 2022, MRX withdrew the proposed rule change (SR-MRX-2022-27).
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Section 902.03 of the NYSE Listed Company Manual (the “Manual”) to amend certain of its annual fees charged to listed issuers. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend certain of its annual fees charged to listed issuers as set forth in Section 902.03 of the Manual. The proposed changes will take effect from the beginning of the calendar year commencing on January 1, 2023. The proposed increases in the annual fees reflect increases in the costs the Exchange incurs in providing services to listed companies on an ongoing basis, as well as increases in the costs of conducting its related regulatory activities. As described below, the Exchange proposes to make the proposed fee increases to better reflect the Exchange's costs related to listing equity securities and the corresponding value of such listing to companies.
The annual fee for each class of equity security listed on the Exchange is equal to the greater of the minimum fee or the fee calculated on a per share basis.
The Exchange currently charges an annual fee of $0.00117 per share for each of the following: a primary class of common shares (including Equity Investment Tracking Stocks); each additional class of common shares (including tracking stock); a primary class of preferred stock (if no class of common shares is listed); each additional class of preferred stock (whether primary class is common or preferred shares); and each class of warrants or rights. The Exchange proposes to change the per share annual fee for the foregoing classes of securities from $0.00117 per share to $0.001215 per share.
The current minimum annual fee for a primary class of common shares (including Equity Investment Tracking Stocks) or a primary class of preferred stock (if no class of common shares is listed) is $74,000. The Exchange proposes to change this minimum annual fee from $74,000 to $80,000.
Notwithstanding the fact that the Exchange proposes to increase the per share fee rate applicable to all classes of equity securities set forth in Section 902.03, the Exchange does not propose to increase the minimum annual fees charged for additional classes of common shares (including tracking stocks), preferred stocks that are not the primary listed equity security, or warrants or rights. The Exchange believes that the benefits issuers receive in connection with those listings are consistent with the current minimum fee levels, as those types of listings do
The revised annual fees will be applied in the same manner to all issuers with listed securities in the affected categories and the Exchange believes that the changes will not disproportionately affect any specific category of issuers.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that it is not unfairly discriminatory and represents an equitable allocation of reasonable fees to amend Section 902.03 to increase the annual fees for the various categories of equity securities as set forth above because of the increased costs incurred by the Exchange since it established the current rates.
The Exchange believes that the proposed changes to its annual fee schedule are reasonable. In that regard, the Exchange notes that its general costs to support its listed companies have increased, including due to price inflation. The Exchange also continues to expand and improve the services it provides to listed companies. Specifically, the Exchange has (among other things) increased expenditure on listed companies and the value of an NYSE listing by: making improvements to NYSE Connect, an online service that provides listed companies with access to in-depth information to better understand the trading of their securities; increasing the value of products and services available to qualified listed companies under Section 907.00 of the Manual;
The Exchange operates in a highly competitive marketplace for the listing of the various categories of securities affected by the proposed annual fee adjustments. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS,
The Exchange believes that the ever-shifting market share among the exchanges with respect to new listings and the transfer of existing listings between competitor exchanges demonstrates that issuers can choose different listing markets in response to fee changes. Accordingly, competitive forces constrain exchange listing fees. Stated otherwise, changes to exchange listing fees can have a direct effect on the ability of an exchange to compete for new listings and retain existing listings.
Given this competitive environment, the adoption of the proposed increase to the annual fees for various categories of equity securities represents a reasonable attempt to address the Exchange's increased costs in servicing these listings while continuing to attract and retain listings.
The Exchange proposes to make the aforementioned fee increases in Section 902.03 to better reflect the value of such listing to issuers.
Notwithstanding the fact that the Exchange proposes to increase the per share fee rate applicable to all classes of equity securities set forth in Section 902.03, the Exchange does not propose to increase the minimum annual fees charged for additional classes of common shares (including tracking stocks), preferred stocks that are not the primary listed equity security, or warrants or rights. The Exchange believes that the benefits issuers receive in connection with those listings are consistent with the current minimum fee levels, as those types of listings do not generally entitle issuers to the types of services provided in connection with a primary common stock listing or primary preferred stock listing and the Exchange has therefore not incurred the same level of cost increase associated with them. In addition, their issuers generally also have a primary common stock listing on the Exchange that will be subject to the increased minimum annual fee of $80,000 and the Exchange believes that this increased minimum fee is sufficient to encompass any increases in minimum costs associated with any such issuer.
The Exchange believes its proposal equitably allocates its fees among its market participants.
The Exchange believes that the proposed amendments to the annual fees for equity securities are equitable because they do not change the existing framework for such fees, but simply increase the amount of certain of the minimum fees and per unit rates to reflect increased operating costs. Similarly, as the fee structure remains effectively unchanged apart from the proposed increases in the rates paid by all issuers, the changes to annual fees for equity securities neither target nor will they have a disparate impact on any particular category of issuer.
The Exchange believes that the proposal is not unfairly discriminatory. The proposed fee changes are not unfairly discriminatory among issuers of primary classes of common shares (including Equity Investment Tracking Stocks) because the same increases will apply to all such issuers. The Exchange does not propose to increase the minimum annual fees charged for additional classes of common shares (including tracking stocks), preferred stocks that are not the primary listed equity security, or warrants or rights. For the reasons described above under
Further, the Exchange operates in a competitive environment and its fees are constrained by competition in the marketplace. Other venues currently list all of the categories of securities covered by the proposed fees and if a company believes that the Exchange's fees are unreasonable it can decide either not to list its securities or to list them on an alternative venue.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to ensure that the fees charged by the Exchange accurately reflect the services provided and benefits realized by listed companies. The market for listing services is extremely competitive. Each listing exchange has a different fee schedule that applies to issuers seeking to list securities on its exchange. Issuers have the option to list their securities on these alternative venues based on the fees charged and the value provided by each listing. Because issuers have a choice to list their securities on a different national securities exchange, the Exchange does not believe that the proposed fee changes impose a burden on competition.
The proposed amended fees will be charged to all listed issuers on the same basis. The Exchange does not believe that the proposed amended fees will have any meaningful effect on the competition among issuers listed on the Exchange.
The Exchange operates in a highly competitive market in which issuers can readily choose to list new securities on other exchanges and transfer listings to other exchanges if they deem fee levels at those other venues to be more favorable. Because competitors are free to modify their own fees, and because issuers may change their chosen listing venue, the Exchange does not believe its proposed fee change can impose any burden on intermarket competition.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order under section 17(d) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by section 17(d) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
Forum Real Estate Income Fund, Forum Capital Advisors LLC, Forum Structured Finance LP, Forum Structured Finance Parallel LP and Forum Structured Finance SLP LLC.
The application was filed on June 17, 2022, and amended on October 4, 2022, November 25, 2022, and December 20, 2022.
An order granting the requested relief will be issued unless the Commission
The Commission:
Laura L. Solomon, Senior Counsel, or Nadya Roytblat, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' third amended and restated application, dated December 20, 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.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a-22 requires all registered clearing agencies to file with the Commission three copies of all materials they issue or make generally available to their participants or other entities with whom they have a significant relationship. The filings with the Commission must be made within ten days after the materials are issued or made generally available. When the Commission is not the clearing agency's appropriate regulatory agency, the clearing agency must file one copy of the material with its appropriate regulatory agency.
The Commission is responsible for overseeing clearing agencies and uses the information filed pursuant to Rule 17a-22 to determine whether a clearing agency is implementing procedural or policy changes. The information filed aides the Commission in determining whether such changes are consistent with the purposes of Section 17A of the Exchange Act. Also, the Commission uses the information to determine whether a clearing agency has changed its rules without reporting the actual or prospective change to the Commission as required under Section 19(b) of the Exchange Act.
The respondents to Rule 17a-22 are registered clearing agencies. The frequency of filings made by clearing agencies pursuant to Rule 17a-22 varies but on average there are approximately 120 filings per year per active clearing agency. There are nine clearing agencies, but only seven active registered clearing agencies that are expected to submit filings under Rule 17a-22. The Commission staff estimates that each response requires approximately .25 hours (fifteen minutes), which represents the time it takes for a staff person at the clearing agency to properly identify a document subject to the rule, print and make copies, and mail that document to the Commission. Thus, the total annual burden for all active clearing agencies is approximately 210 hours (7 clearing agencies multiplied by 120 filings per clearing agency multiplied by .25 hours).
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing by February 27, 2023.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549, or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange proposes to amend MRX's Pricing Schedule at Options 7, Section 7.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On May 2, 2022, MRX initially filed this proposal to amend its Pricing Schedule at Options 7, Section 7, to assess market data fees, which had not been assessed since MRX's inception in 2016.
This Proposal reflects MRX's assessment that it is ready to distribute its market data on the same basis as the other 15 options exchanges. When these fees were initially proposed in May 2022, MRX was the only options exchange out of the 16 current options exchanges not to assess market data fees.
The Exchange proposes to amend fees for the following market data feeds within Options 7, Section 7: (1) Nasdaq MRX Depth of Market Data Feed (“Depth of Market Feed”);
In addition to the proposed fees for each data feed, the Exchange proposes an Internal Distributor Fee
The Exchange also proposes to assess an External Distributor Fee of $2,000 per month for the Depth of Market Feed, Order Feed, and Top Feed, an External
MRX will also assess Professional
MRX also proposes a Non-Display Enterprise License for $7,500 per month. This license would lower costs for internal professional subscribers and lower administrative costs overall by permitting the distribution of all MRX proprietary direct data feed products to an unlimited number of internal non-display Subscribers without incurring additional fees for each internal Subscriber, or requiring the customer to count internal subscribers.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Proposal is reasonable and unlikely to burden the market in light of MRX's small size, the nature of the fees, and the demonstrated ability of MRX customers to cancel their subscriptions for market data.
MRX has had a consistently low percentage of market share, starting at approximately 0.2 percent when it opened as an Exchange and ending at approximately 1.37% in November 2022. This is the smallest market share of the 16 operating options exchanges.
The proposed fees are comparable to those of other exchanges. For example, the MIAX Emerald Options Exchange charges $3,000 for internal distribution and $3,500 for external distribution of the MIAX Order Feed (“MOR”).
C2 Options charges $2,500 per month for internal and external distribution of its Book Depth Data Feed, plus $50 per Device or user ID for Display Only Service Users (external users).
NYSE American Options charges an access fee of $3,000 per month for its American Options Top, American Options Deep and American Options Complex products, plus a multiple datafeed fee of $200, a redistribution fee of $2,000 per month, and a Professional per user fee of $50 per month and a Non-Professional user fee of $1 per month.
Internal distribution fees for the Nasdaq ISE Order Feed is $3,000 per month per distributor for internal use, and $3,000 per month for external redistribution, with additional fees for external controlled devices.
The Top Quote Feed for ISE is $3,000 per month per distributor for internal use, plus additional fees; $3,000 per month per distributor for professional external distribution, plus other charges; and $3,000 per distributor per month for external Non-Professional distribution through a controlled device.
MRX views the proposed fees as comparable to those of other options exchanges and fairly representative of the value of its data.
A sizeable portion of subscribers—approximately 15 percent—have terminated their subscriptions following the implementation of the proposed fees, demonstrating that customers can and do exercise choice in deciding whether to purchase the Exchange's market data feeds. As of May 2, 2022, the date that MRX initially proposed these market data fees, MRX reported that two customers had terminated their market data subscriptions.
Three of the five customers were either data vendors or technology suppliers. Data vendors purchase exchange data and redistribute it to downstream customers, while technology suppliers incorporate exchange data into software solutions, which are sold to downstream customers. The remaining two firms engage in options trading, either on their own behalf or that of a customer. The three data vendors/technology suppliers do not trade on their own behalf or on the behalf of any downstream customs, although their customers may do so. The Exchange understands that these three firms cancelled due to insufficient demand from their downstream customers for MRX data. The two remaining firms, which do engage in options trading, have not traded on MRX, but are active traders on other Nasdaq options exchanges.
The Proposal is not unfairly discriminatory. The five market data feeds at issue here—the Depth of Market Feed, Order Feed, Top Feed, Trades Feed, and Spread Feed—are used by a variety of market participants for a variety of purposes. Users include regulators, market makers, competing exchanges, media, retail, academics, portfolio managers. Market data feeds will be available to members of all of these groups on a non-discriminatory basis.
The Proposal is consistent with the typical growth pattern of exchanges. New exchanges commonly waive data fees to attract market participants, facilitating their entry into the market and, once there is sufficient depth and breadth of liquidity, “graduate” to compete against established exchanges and charge fees that reflect the value of their services. Other options exchanges have charged market data fees while MRX developed, and now, after 6 years, MRX proposes to do so as well.
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.
Nothing in the Proposal burdens inter-market competition (the competition among self-regulatory organizations) because approval of the Proposal does not impose any burden on the ability of other options exchanges to compete. MRX market data is available to any customer under the same fee schedule as any other customer, and any market participant that wishes to purchase MRX market data can do so.
Nothing in the Proposal burdens intra-market competition (the competition among consumers of exchange data) because each customer will be able to decide whether or not to purchase the Exchange's market data, as demonstrated by the fact that a significant number of the Exchange's customers have already elected to terminate their access to such feeds.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N-8B-4 (17 CFR 274.14) is the form used by face-amount certificate companies to comply with the filing and disclosure requirements imposed by Section 8(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-8(b)). Among other items, Form N-8B-4 requires disclosure of the following information about the face-amount certificate company: date and form of organization; controlling persons; current business and contemplated changes to the company's business; investment, borrowing, and lending policies, as well as other fundamental policies; securities issued by the company; investment adviser; depositaries; management personnel; compensation paid to directors, officers, and certain employees; and financial statements. The Commission uses the information provided in the collection of information to determine compliance with Section 8(b) of the Investment Company Act of 1940.
Form N-8B-4 and the burden of compliance have not changed since the last approval. Each registrant files Form N-8B-4 for its initial filing and does not file post-effective amendments to Form N-8B-4.
The information provided on Form N-8B-4 is mandatory. The information provided on Form N-8B-4 will not be kept confidential. 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.
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted by February 27, 2023.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1)
The Exchange proposes to certain representations made in the proposed rule change previously filed with the Securities and Exchange Commission (the “Commission” or “SEC”) pursuant to Rule 19b-4 relating to the Stance Equity ESG Large Cap Core ETF (the “Target ETF”). Shares of the Target ETF are currently listed and traded on the Exchange under NYSE Arca Rule 8.601-E. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
1.
The Commission has approved the listing and trading on the Exchange of shares of the Target ETF, under NYSE Arca Rule 8.601-E, which governs the listing and trading of Active Proxy Portfolio Shares, which are securities issued by an actively managed open-end investment management company.
The Hennessy Funds Trust has filed a combined prospectus and proxy statement (the “Proxy Statement”) with the Commission on Form N-14 describing a “Plan of Reorganization” pursuant to which the assets of the Target ETF will be merged into the Hennessy Stance ESG Large Cap ETF (“Acquiring ETF”), a series of the Hennessy Funds Trust.
In this proposed rule change, the Exchange proposes to change certain representations made in the proposed rule change previously filed with the Commission pursuant to Rule 19b-4 relating to the Target ETF, as described above,
The Notice stated that shares of the Target ETF are issued by The RBB Fund, Inc. Following the Reorganization, shares will be issued by Hennessy Funds Trust. The Target ETF's investment adviser is Red Gate Advisers, LLC. Following the Reorganization, the investment adviser will be Hennessy Advisors, Inc.
The investment objective of the Acquiring ETF will remain unchanged. In addition, the Acquiring ETF's portfolio meets and will continue to meet the representations regarding the Target ETF's investments as described in the Releases.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices, and is designed to promote just and equitable principles of trade and to protect investors and the public interest. Hennessy Funds Trust has filed the Proxy Statement describing the Reorganization pursuant to which, following approval of the Target ETF's shareholders and closing of the Reorganization, all of the assets of the Stance Equity ESG Large Cap Core ETF will be transferred to a corresponding fund of the Hennessy Funds Trust, which will have the name Hennessy Stance ESG Large Cap ETF. This filing proposes to reflect organizational and administrative changes that would be implemented as a result of the Reorganization, including changes to the trust entity issuing shares of the Target ETF and the adviser to the Target ETF. As noted above, Hennessy Advisors, Inc. is not registered as a broker-dealer or affiliated with a broker-dealer. In the event (a) Hennessy Advisors, Inc. becomes registered as a broker-dealer or becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer, or becomes affiliated with a broker-dealer, it will implement and maintain a “fire wall” with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the Acquiring ETF's Actual Portfolio and/or Proxy Portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the Acquiring ETF's Actual Portfolio and/or Proxy Portfolio or changes thereto. According to the Proxy Statement, the investment objective of the Acquiring ETF will be the same as that of the Target ETF following the Reorganization. The Exchange believes these changes will not adversely impact investors or Exchange trading. In addition, the Acquiring ETF's portfolio meets and will continue to meet the representations regarding the Target ETF's investments as described in the Releases. Except for the changes noted above, all other representations made in the Releases remain unchanged. As stated above and in the Releases, shares of the Acquiring ETF shall also conform to the initial and continued listing criteria under Rule 8.601-E.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change will not impose a burden on competition and will benefit investors and the marketplace by permitting continued listing and trading of shares of the Acquiring ETF following implementation of the changes described above that would follow the Reorganization, which changes would not impact the investment objective of the Acquiring ETF.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-NYSEARCA-2022-84 and should be submitted on or before January 18, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 24, 2022, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
ICC's Clearing Participants provide collateral to ICC to satisfy their margin and Guaranty Fund requirements. To manage the risk associated with fluctuations in the value of this collateral, ICC applies haircuts to the collateral that it accepts. These haircuts reduce the value of the collateral for ICC's risk management purposes. Overall, the haircuts are designed to account for potential decline in asset liquidation value during stressed market conditions. The CRMF would describe, in a quantitative manner, how ICC derives the collateral haircuts.
The overall purpose of the proposed rule change is to move the CRMF, the substance of which is currently found in Appendix 6 to Treasury Policy, into a separate, standalone document. Making the CRMF a separate, standalone document would allow ICC to treat the CRMF as a separate risk management model, subject to review and validation like ICC's other risk management models.
To accomplish this objective, the proposed rule change would: (i) delete Appendix 6 to the Treasury Policy; (ii) move the substance of the information found in Appendix 6 to a standalone document entitled the CRMF; and (iii) update references in the Treasury Policy and LRMF to refer to the CRMF, rather than Appendix 6 to the Treasury Policy. The changes are discussed for each of the Treasury Policy, CRMF, and LRMF as follows.
As discussed above, Appendix 6 to the Treasury Policy currently has information that the proposed rule change would move into the CRMF. Thus the proposed rule change would first delete Appendix 6 from the Treasury Policy and would move this information to the CRMF (as discussed below).
The CRMF would describe, in a quantitative manner, how ICC derives collateral haircuts, which ICC uses to manage the risk of fluctuations in the prices of collateral posted by Clearing Participants. As discussed above, the CRMF would include the substance of
In addition to this information from Appendix 6 of the Treasury Policy, the CRMF would include other information related to collateral risk management that is not currently found in Appendix 6. For example, Section IV would contain examples of how ICC would apply the methodology set out in the CRMF to arrive at haircuts for various types of collateral. Section V would present a list of referenced publications, which is also information not currently found in Appendix 6.
Because the CRMF would contain additional information that is not currently found in Appendix 6, and because the Commission is approving the CRMF as a separate document for the first time, the CRMF is described in its entirety as follows.
The CRMF is divided into six sections. Section I describes in general how ICC computes collateral haircuts. To compute collateral haircuts, ICC estimates both the 5-day 99% expected shortfall and the 2-day 99.9% Value-at-Risk, using the same time series. Of the two, ICC chooses the more conservative risk measure to establish the haircut factors that capture potential collateral value losses.
Section I further contains three subsections. Subsections I.a and I.b describe in more detail how ICC derives haircuts for collateral that is denominated in foreign currencies and for collateral that is sovereign debt. Subsection I.a describes a two-stage approach to account for the risk associated with fluctuations of collateral asset prices denominated in foreign currencies and the corresponding time series is used for collateral denominated in foreign currencies.
Section II details one of the main components ICC's collateral risk model: the distribution that describes the realizations of the risk factor that in turn determines the price of a particular item of collateral.
Subsection II.a details certain distribution assumptions appropriate for foreign exchange (“FX”) and fixed income (“FI”) assets on which the haircut methodology is based. Subsection II.b describes how parameter estimates are obtained and used to compute multi-day risk measures. Subsection II.c details how the variability of a risk factor is described for risk management purposes and presents the selected measure of variability for all considered time series. Subsection II.d portrays multi-period forecasting, which includes the analysis that is performed to extend one-day forecasts to multi-period forecasts. Subsection II.e details the methods to obtain risk measures that are used for haircut purposes.
Section III describes governance procedures relevant to the CRMF as well as a summary of the associated governance process. Upon the daily executions of collateral haircut factors, the Risk Department reviews the results, which are updated no less than monthly and the ICC Chief Risk Officer (“CRO”) has the discretion to update the haircut factors more often. The Risk Department would also conduct back-testing, at least quarterly, to review the statistical performance of the collateral haircut model. If the back-testing results show exceedances beyond the more conservative risk measure, then ICC's CRO and Risk Oversight Officer will determine whether to trigger subsequent remedial steps and consultations.
Section IV provides examples of the application of the methodology to FX and FI instruments. Overall these examples demonstrate the viability of the provide examples of the modeling approaches to various assets. Each of the examples documents a three-stage approach to estimate risk measures and corresponding haircut factors.
The final two sections, Section V and Section VI, provide referential background related to the document itself. Section V has a list of references and Section VI adds a revision history.
The LRMF changes would be the most minor of the changes of the three policies subject to this rule change. More specifically, instead of referencing the Treasury Policy Appendix 6, the amended LRMF would reference the CRMF.
Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of ICC be designed to promote the prompt and accurate clearance and settlement of securities transactions.
The Commission believes that unifying information on ICC's collateral assets risk management methodology in one document with more detail will improve transparency while promoting effective operation of the model. The CRMF would include information from Appendix 6 of the Treasury Policy but also would expand on it. Duplicative information would be removed from the Treasury Policy and references in the Treasury Policy and the LRMF would be updated to the CRMF as needed. Additional information would be provided regarding the collateral assets risk management model and methodology that would facilitate replication and validation by third parties. Additional information would be included on relevant parameters, computations, equations, definitions, and figures to describe relevant processes, which the Commission believes would help ensure responsible parties effectively complete their
Rules 17Ad-22(e)(2)(i) and (v)
Rule 17Ad-22(e)(5)
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act, and in particular, with the requirements of Section 17A(b)(3)(F) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 8, 2022, Nasdaq MRX, LLC (“MRX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
On December 16, 2022, MRX withdrew the proposed rule change (SR-MRX-2022-28).
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
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
Newly-opened exchanges often charge no fees for certain services, such as ports, in order to attract order flow to an exchange, and later amend their fees to charge for those 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 Nasdaq MRX Depth of Market, Nasdaq MRX Order Feed, Nasdaq MRX Top Quote Feed, Nasdaq MRX Trades Feed, or Nasdaq MRX Spread Feed Ports; all of these aforementioned ports will continue to be assessed no fees. Additionally, as is the case today, the Disaster Recovery Ports for the Nasdaq MRX Depth of Market, Nasdaq MRX Order Feed, Nasdaq MRX Top Quote Feed, Nasdaq MRX Trades Feed and Nasdaq MRX Spread Feed Ports will not be assessed a fee.
Only one FIX order protocol is required for an MRX Member to submit orders into MRX and to meet its regulatory requirements.
Only one SQF quote protocol is required for an MRX Market Maker to submit quotes into MRX and to meet its regulatory requirements.
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. All other ports offered by MRX are not required for an MRX Member to meet its regulatory obligations.
MRX also offers an OTTO protocol.
Further, while only one FIX 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
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 FIX Disaster Recovery Ports for $50 per port, per month, per account number. Market Makers may elect to purchase additional 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. Additional FIX and SQF Disaster Recovery Ports are not necessary for an MRX Member to meet its regulatory obligations.
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 not required for an MRX Member to meet its regulatory obligations. The proposed Disaster Recovery Port fees are intended to encourage Members to be efficient when purchasing Disaster Recovery Ports.
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
These different protocols are not all necessary to conduct business on MRX; a Member may choose among protocols based on their business workflow. The Exchange's proposal to offer the first FIX and SQF Port at no cost as well as the first FIX and SQF Disaster Recovery Ports at no cost would allow MRX Members to submit orders and quotes into MRX at no cost while meeting their regulatory obligations.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
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 Exchange notes that, as of May 2, 2022, one MRX Member, who was also a Market Maker, cancelled all of their ports (1 SQF Port and 1 OTTO Port) to avoid being assessed any MRX port fees.
Only one FIX order protocol is required for an MRX Member to submit orders into MRX and to meet its regulatory requirements
Only one SQF quote protocol is required for an MRX Market Maker to submit quotes into MRX and to meet its regulatory requirements
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 to meet its regulatory requirements. As noted above, Members may freely choose to rely on one or many ports, depending on their business model.
The Exchange's proposal 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. These ports, which are offered at no cost, would allow an MRX Member to meet its regulatory requirements. All other ports offered by MRX are not required for an MRX Member to meet its regulatory obligations. 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 as an MRX Member is able to meet its regulatory requirements with these ports.
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 not required for a member to meet its regulatory requirements. 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 not required for a
The Exchange's proposal to offer an SQF Purge Port for $1,250 per port, per month is reasonable because this port is not required for a member to meet its regulatory requirements. 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. The proposed SQF Purge Port is equitable and not unfairly discriminatory because any Market Maker may elect to purchase an SQF Purge Port and would be subject to the same fee.
The Exchange's proposal to assess $650 per port, per month for CTI Ports and FIX DROP Ports is reasonable because these ports are not required for a member to meet its regulatory requirements. The proposed CTI and FIX DROP Ports are equitable and not unfairly discriminatory because any Member may elect to purchase an additional 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 and allow MRX Members to meet their regulatory obligations. 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 additional FIX Disaster Recovery Ports beyond the first port offered at no cost and $50 per port, per month, per account number for additional SQF Disaster Recovery Ports beyond the first port at no cost is reasonable because these ports allow MRX Members to meet their regulatory obligations. 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 allow MRX Members to meet their regulatory obligations. 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 additional 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 fees assessed today by GEMX, except that GEMX does not offer the first FIX and SQF Port at no cost, nor does GEMX offer the first FIX Disaster Recovery Port or the first SQF Disaster Recovery Port at no cost.
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, permits MRX to set fees, similar to other options markets, while continuing to allow MRX Members to meet their regulatory obligations. 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 (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) are not required for MRX Members to meet their regulatory obligations. The proposed fees do not impose an undue burden on competition because the Exchange would uniformly assess the port fees to all Members, as applicable, and would uniformly apply monthly caps.
Other markets have higher market share as compared to MRX (1.37%). The proposed port fees are similar to port fees assessed by other options markets as noted in this proposal as noted above.
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.
Notice is hereby given that Convergent Capital Partners IV, LP, 9855 West 78th Street, Suite 320, Eden Prairie, MN 55344, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under section 312 of the Act and 13 CFR 107.730,
The financing is brought within the purview of 13 CFR 107.730(a)(4) of the Code of Federal Regulations because proceeds from the financing will discharge the obligation of Convergent Capital Partners III, LP, an Associate by virtue of Common Control as defined at 13 CFR 107.50.
Notice is hereby given that any interested person may submit written comments on this transaction within fifteen days of the date of this publication to the Associate Administrator, Office of Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416.
Notice is hereby given that New Canaan Funding Mezzanine VII SBIC, LP, 305 Fifth Avenue South, Suite 204 Naples, FL 34102, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concerns, has sought an exemption under section 312 of the Act and 13 CFR 107.730,
The proposed transaction is brought within the purview of 13 CFR 107.730 of the Code of Federal Regulations because New Canaan Funding Mezzanine V SBIC, LP and New Canaan Funding Mezzanine V, LP, Associates of New Canaan Funding Mezzanine VII SBIC, LP, by virtue of Common Control as defined at 13 CFR 107.50, hold investments in Safemark, Inc. which will be discharged. In addition, New Canaan Funding Mezzanine VII SBIC, LP and its Associates did not previously invest in Safemark, Inc. at the same time and on the same terms and conditions as the proposed financing to Safemark, Inc.
Therefore, the proposed transaction is considered self-deal pursuant to 13 CFR 107.730 and requires a regulatory exemption. Notice is hereby given that any interested person may submit written comments on the transaction within fifteen days of the date of this publication to Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416.
The Department of State's Advisory Committee on Private International Law (ACPIL) will hold a virtual meeting to discuss the Hague Experts Group Final Report on Parentage/Surrogacy Project on Wednesday February 1, 2023. The meeting will be held in WebEx. The program is scheduled to run from 1 p.m. to 4 p.m.
The meeting will discuss the Final Report of the Experts' Group regarding the feasibility of one or more private international law instruments on legal parentage. The Final Report has been made available on the HCCH website at
Members of the public may attend this virtual session and will be permitted to participate in the discussion. Virtual attendance is limited to 100 persons, so each member of the public that wishes to attend this session must provide: Name, contact information, and affiliation to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant the exemption application from Stevens Transport, Inc. (Stevens). Stevens sought an exemption from the requirement that a commercial learner's permit (CLP) holder be accompanied by a commercial driver's license (CDL) holder with the proper CDL class and endorsements seated in the front seat of the vehicle while the CLP holder performs behind-the-wheel training on public roads or highways. The exemption allows a CLP holder who has passed the skills test but not yet received the CDL document to drive a Stevens commercial motor vehicle (CMV) accompanied by a CDL holder who is not necessarily in the passenger seat, provided the driver has documentation of passing the skills test. FMCSA has analyzed the exemption application and public comments and determined that the exemption, subject to the terms and conditions imposed, will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
The exemption is effective from December 28, 2022 through December 28, 2027.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; (202) 366-2722;
To view comments, go to
To view documents mentioned in this notice as being available in the docket, go to
If you do not have access to the internet, you may view the docket by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
FMCSA's CDL regulations in 49 CFR 383.25 prescribe minimum conditions for behind-the-wheel training of a CLP holder. Section 383.25(a)(1) requires that a CLP holder at all times be accompanied by a CDL holder with the proper CDL class and endorsements. The CDL holder must be seated in the front seat of the CMV while the CLP holder performs behind-the-wheel training on public roads or highways.
Stevens requests an exemption from 49 CFR 383.25(a)(1) to allow CLP holders who have passed a CDL skills test, and are thus eligible to receive a CDL, to drive a CMV without a CDL holder always present in the front passenger seat. Stevens states that it recruits and develops driver candidates through the Stevens Driving Academy and several affiliated commercial driving schools that provide CDL training in a number of States, including Colorado, Louisiana, Georgia, Florida, and Tennessee. Stevens graduates approximately 3,150 new drivers each year.
Stevens asserts that without the exemption, it must choose either to wait for drivers to obtain the CDL credential from their home State before starting on-duty freight operations or to send the drivers home in an unproductive non-driving capacity. The result, according to Stevens, is supply chain inefficiency and a lost employment opportunity for a new driver. In addition, Stevens explains that States may take weeks to properly document and update the status of a new driver's license. This administrative waiting period has caused a significant burden on Stevens's operations.
Stevens indicates that the exemption will result in a level of safety that is greater than the level of safety without the exemption. Stevens states that the only difference between a CLP holder who has passed the CDL skills test and a CDL holder is that the latter has obtained a hard copy of the CDL document from the home State's Department of Motor Vehicles (DMV). The practical result of the exemption is that CLP holders who have passed a CDL skills test are able to begin immediate and productive on-the-job training. According to Stevens, this will allow them to hone their recently acquired driving skill set and put them to work as a productive employee, as opposed to waiting for the CDL document. Stevens states that it will maintain proper, up-to-date records for all drivers in possession of a CLP who have passed the CDL skills test. A copy
On June 14, 2022, FMCSA published notice of the Stevens application and requested public comment [87 FR 36034]. The Agency received four comments. The Owner-Operator Independent Driver's Association (OOIDA) opposed the exemption request, as OOIDA believes that Stevens failed to prove that a waiver would result in “a level of safety equivalent to, or greater than, the level that would be achieved by the regulation.” OOIDA commented that Stevens demonstrated only a desire to increase its productivity and profit at the risk of highway safety. OOIDA also commented that: (1) far too many new drivers are entering the trucking industry and driving on the nation's roads without the basic skills to safely operate a commercial vehicle and section 383.25(a)(1) is designed to properly ensure that inexperienced drivers will have sufficient training, instruction, and oversight as they learn the job; (2) Stevens's exemption request fails to explain how the CLP holder will be adequately mentored if the CDL holder is not in the passenger seat; and (3) the regulations requiring an experienced driver in the front seat with a permit holder were implemented with safety in mind, and FMCSA must continue bolstering training requirements in support of the Entry-Level Driver Training rule. Three other individual commenters also opposed the exemption request. One commenter stated that too many “mega” carriers put inexperienced, unqualified drivers on the road, while another commented that the risk of having an inexperienced driver behind the wheel without supervision is counterproductive to safety.
FMCSA has evaluated Stevens' application for exemption and the public comments and believes Stevens will achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption. The premise of comments opposing the exemption is that CLP holders lack experience and are safer drivers when observed by a CDL driver trainer who is on duty and in the front seat of the vehicle. However, CLP holders who have passed the CDL skills test are eligible to obtain a CDL without further training. If these CLP holders had obtained their training and CLPs in their State of domicile, they could immediately obtain their CDL at the State driver licensing agency and begin driving a CMV without any on-board supervision. Because these drivers have passed the CDL skills test, the only thing necessary to obtain the CDL is to visit the DMV office in their State of domicile.
In addition, FMCSA has already granted this same exemption request—and in some instances, five-year renewals—for the following five other motor carriers: CRST Expedited, C.R. England, Inc., New Prime, Inc., Werner Enterprises, and Wilson Logistics [83 FR 53149; 87 FR 36360; 87 FR 38449; 87 FR 18855; 86 FR 11050].
The requested exemption is restricted to Stevens' CLP holders who have documentation that they have passed the CDL skills test. The exemption will enable these drivers to operate a CMV as a team driver without requiring the accompanying CDL holder be on duty and in the front seat while the vehicle is moving.
When operating under this exemption, Stevens and its drivers are subject to the following terms and conditions:
(1) Stevens and its drivers must comply with all other applicable Federal Motor Carrier Safety Regulations (49 CFR parts 350-399);
(2) The drivers must be in possession of a valid State driver's license, CLP with the required endorsements, and documentation that they have passed the CDL skills test;
(3) The drivers must not be subject to any out-of-service (OOS) order or suspension of driving privileges; and
(4) The drivers must be able to provide this exemption document to enforcement officials.
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption. States may, but are not required to, adopt the same exemption with respect to operations in intrastate commerce.
Stevens must notify FMCSA within 5 business days of any crash (as defined in 49 CFR 390.5) involving any of its CMVs operating under the terms of this exemption. The notification must include the following information:
(a) Name of the exemption: “Stevens”;
(b) Date of the accident;
(c) City or town, and State, in which the accident occurred, or closest to the accident scene;
(d) Driver's name and license number;
(e) Vehicle number and State license number;
(f) Number of individuals suffering physical injury;
(g) Number of fatalities;
(h) The police-reported cause of the accident;
(i) Whether the driver was cited for violation of any traffic laws, motor carrier safety regulations; and
(j) The driver's total driving time and total on-duty time prior to the accident. Reports filed under this provision shall be emailed to
FMCSA does not believe the drivers covered by this exemption will experience any deterioration of their safety record. The exemption will be rescinded if: (1) Stevens and its drivers operating under the exemption fail to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant a two-year exemption to the State of Alaska from the limitations imposed by the commercial driver's license (CDL) regulations on the State's ability to issue restricted CDLs. The exemption allows the State to waive specified portions of the CDL skills test for drivers in 14 defined geographical areas that lack infrastructure to allow completion of the full skills test. Drivers who receive a restricted CDL under the provisions of this exemption are also
The exemption is effective from December 28, 2022 through December 30, 2024.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; (202) 366-2722;
To view comments, go to
To view documents mentioned in this notice as being available in the docket, go to
If you do not have access to the internet, you may view the docket by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305(a)). The decision of the Agency must be published in the
Under 49 CFR 383.3(e) the State of Alaska may waive certain knowledge and skills tests requirements and issue restricted CDLs, subject to certain conditions. To be eligible for a restricted CDL under 49 CFR 383.3(e), which is not valid outside Alaska, drivers must operate exclusively over roads that are not connected to the State highway system and are not connected to any highway or vehicular way with an average daily traffic volume greater than 499 (§ 383.3(e)(2)). The Federal Highway Administration, FMCSA's predecessor agency, set the daily traffic volume limit at 499 in 1996 (54 FR 33230).
The ELDT regulations, implemented on February 7, 2022, and set forth in 49 CFR 380, subparts F and G, establish minimum training standards for individuals applying for certain CDLs and defined curriculum standards for theory and behind-the-wheel (BTW) training. The ELDT curriculum in 49 CFR part 380, Appendix A, Section A3.1, requires Class A CDL applicants to demonstrate proficiency in proper techniques for initiating vehicle movement, executing left and right turns, changing lanes, navigating curves at speed, entry and exit on the interstate or controlled access highway, and stopping the vehicle in a controlled manner. Under 49 CFR 380.603(a)(2), drivers issued a restricted CDL by the State of Alaska are exempt from the ELDT requirements.
The State of Alaska (Alaska) requested an exemption from the ELDT curriculum in 49 CFR part 380, appendix A, section A3.1, which requires Class A CDL applicants to demonstrate proficiency in proper techniques for initiating vehicle movement, executing left and right turns, changing lanes, navigating curves at speed, entry and exit on the interstate or controlled access highway, and stopping the vehicle in a controlled manner. Alaska stated that the exemption is necessary because the current threshold for determining whether a driver is eligible for a restricted CDL, set forth in 49 CFR 383.3(e), is outdated and excludes some remote communities that have unpaved, two-lane roads not connected to the National Highway System. Consequently, these areas “do not have the infrastructure or driving scenarios” to complete the portions of ELDT that require the driver-trainee to demonstrate proficiency in vehicle control maneuvers on the interstate or controlled access highway. Alaska asserts that, because CDL applicants from these remote communities are not currently eligible to receive a restricted CDL, and thus be exempt from ELDT, they would be required to fly into larger cities and incur travel costs and lost wages to complete the BTW training requirements related to controlled access highways.
In its request for exemption, Alaska asserts “that the new regulations define off-highway licenses under 49 CFR 383.3(e)(2)(ii) as average daily traffic count of 499 or less, which excludes many remote Alaska communities, so their commercial drivers are now subject to the new ELDT requirements.” Alaska describes this result as having “devastating impact on rural Alaska's movement of produce, prescriptions, people, and other goods.”
The Agency believes permitting the issuance of restricted CDLs to drivers operating a commercial motor vehicle (CMV) in 14 geographically remote communities identified in Section VI of this notice will achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption (49 CFR 381.305(a)).
On July 6, 2022, FMCSA published notice of the State of Alaska application and requested public comment (87 FR 40334). The Agency received 30 comments, 24 of which supported the exemption. Those filing in support included Alaskan driver training schools, Alaskan cities/boroughs, the Alaska Department of Labor and Workforce Development, the Alaska Trucking Association, motor carriers, and several individuals. Five commenters opposed the exemption, including the Owner-Operator Independent Driver's Association (OOIDA), the AFL-CIO/Transportation
The Prince of Wales Vocational/Technical School's comments in support of the exemption included points that were echoed by others, stating that the ELDT regulations “inadvertently will have a devastating effect on most of the State of Alaska by requiring road testing on roads that simply do not exist in most of the State. The shortage of and retention of CDL drivers will be negatively affected by this regulation.”
The Petersburgh Borough added support for the exemption request in their filed comments, stating that “the costs for regulatory compliant CDL training in combination with the inconvenience of having to spend extended time in another community to receive the training are egregious hardships on employers and the employees seeking to better themselves through attainment of a CDL. By allowing us to continue local rural training and testing, you would show Alaskans that you understand and appreciate that Alaska is a unique landscape.” Another commenter stated, “Traveling to a community where training and testing are available is cost prohibitive as it could cost thousands of dollars.”
OOIDA opposed the exemption, citing its participation as an industry stakeholder on the ELDT Negotiated Rulemaking Committee when the “framework” of the ELDT rule was agreed upon and commented that these minimum requirements must be strengthened, not waived. The AFL-CIO/TTD also opposed the exemption, stating that allowing Alaska, or any locality within the State, to move forward with an exemption from such basic ELDT requirements would undermine the intent of the ELDT program to prepare commercial drivers to respond safely in situations that they will encounter while driving.
FMCSA has evaluated the State of Alaska's application for exemption and the public comments and based on its analysis, decided to grant an exemption from 49 CFR 383.3(e)(2) in lieu of granting an exemption from the ELDT curriculum in 49 CFR part 380, Appendix A, Section A3.1, as requested by the State. If FMCSA were to grant the relief requested, the affected drivers would be eligible to obtain an unrestricted CDL and operate in any location in the U.S., even though they did not receive the requisite training to safely operate a CMV when entering and exiting an interstate or controlled access highway designed for high-speed vehicular traffic, navigating curves at speed, changing lanes, and stopping the CMV in a controlled manner. FMCSA concludes that this outcome would not result in a level of safety equivalent to, or greater than the level achieved without the requested exemption.
As noted above, Alaska currently has the discretion, under 49 CFR 383.3(e), to waive certain CDL knowledge and skills tests requirements and issue a restricted CDL, valid only in Alaska. Currently, drivers who apply for a restricted CDL are exempt from the ELDT regulations, pursuant to 49 CFR 380.603(a)(2). However, under § 383.3(e)(2), to be eligible for a restricted CDL issued under § 383.3(e), which is not valid outside the State, drivers must operate exclusively over roads that are not connected to the state highway system and are not connected to any highway or vehicular way with an average daily traffic volume greater than 499. This standard was adopted in 1989 by the Federal Highway Administration, FMCSA's predecessor agency. As the State pointed out in its exemption request, this standard excludes many remote Alaska communities, requiring CDL applicants in these areas to comply with FMCSA's ELDT requirements.
The Agency believes that granting an exemption allowing Alaska to issue restricted CDLs, subject to the terms and conditions set forth below, will achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption (49 CFR 381.305(a)). The exemption applies only to CDL applicants who reside in one of the named remote geographical areas identified below and who operate only within those defined areas. In addition, the State may waive only specified elements of the skills test affected by the lack of infrastructure in the identified communities. Individuals applying for a restricted CDL covered by this exemption are exempt from ELDT in accordance with 49 CFR 380.603(a)(2).
FMCSA grants an exemption from 49 CFR 383.3(e)(2) for a period of two years subject to the terms and conditions of this decision.
The State of Alaska may issue CDLs under this exemption only to drivers who reside in the following communities or areas:
The State of Alaska and drivers operating under this exemption are subject to the following terms and conditions:
(1) The State of Alaska must comply with 49 CFR 383.133(b) and 383.135(a) of the knowledge tests standards for testing procedures and methods set forth in 49 CFR part 383, subpart H, and must continue to administer knowledge tests that fulfill the content requirements of subpart G.
(2) The State of Alaska may waive only the following portions of the CDL skills test, as set forth in 49 CFR 383.113(c), that cannot be performed due to infrastructure limitations in the identified communities or areas:
• ability to adjust speed to the configuration and condition of the roadway, weather and visibility conditions, traffic conditions, and motor vehicle, cargo, and driver conditions (§ 383.113(c)(3)); and
• ability to choose a safe gap for changing lanes, passing other vehicles, as well as for crossing or entering traffic (§ 383.113(c)(4));
(3) Drivers applying for a CDL to be issued under this exemption must reside in one of the 14 geographical areas identified in Section VII. B of this Notice;
(4) Drivers issued a restricted CDL under this exemption may operate only within the 14 geographical areas identified in Section VII. B of this Notice; and
(5) The drivers must comply with all other applicable Federal Motor Carrier Safety Regulations (49 CFR part 350-399).
(6) The State of Alaska must include notice on a restricted CDL issued pursuant to this exemption of the geographical area(s) in which the CDL holder may operate a CMV.
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.60, during the period this exemption is in effect, no State shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a person operating under the exemption.
The State of Alaska must provide to FMCSA, upon request, a list of all drivers issued CDLs under this exemption.
FMCSA does not believe that drivers covered by this exemption will experience any deterioration of their safety record.
The Agency will, however, rescind the exemption if: (1) the State of Alaska or drivers operating under the exemption fail to comply with the terms and conditions of the exemption; (2) the exemption results in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objective of 49 U.S.C. 31136(e) and 31315(b).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; granting of application for exemptions.
FMCSA announces its decision to grant exemptions for 32 member companies of the American Pyrotechnics Association (APA) from certain hours of service (HOS) regulations during designated Independence Day periods. The exemptions will allow drivers for these companies to exclude off-duty and sleeper berth time of any length from the calculation of the 14-hour limit and to use paper records of duty status (RODS) in lieu of electronic logging devices (ELDs). FMCSA has analyzed the application for exemptions and the public comments submitted and has determined that the exemptions, subject to the terms and conditions imposed, will likely achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved through compliance with the regulations.
These exemptions are effective for the period June 28 through July 8, at 11:59 p.m. local time, each year from 2023 through 2024.
Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366-4225. Email:
To view comments, go to
To view documents mentioned in this notice as being available in the docket, go to
If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant exemptions from Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The Agency must publish its decision in the
The HOS regulation in 49 CFR 395.3(a)(2) prohibits the driver of a property-carrying commercial motor vehicle (CMV) from driving after the 14th hour after coming on duty following 10 consecutive hours off duty. Drivers required to prepare RODS must do so using ELDs under 49 CFR 395.8(a)(1)(i). However, under 49 CFR 395.8(a)(1)(iii)(A)(
APA reports that over 16,000 fireworks displays are conducted annually. Although most of the displays are conducted on July 4 each year, it is impossible to deliver and shoot all of the fireworks displays on the Fourth of July holiday. Thus, the fireworks displays are spread out over a period of 11 days.
APA requests renewal of its HOS exemptions from the 14-hour rule in 49 CFR 395.3(a)(2) and the ELD rule in 49 CFR 395.8(a)(1)(i) for 42 of 60 companies included in the 2021 HOS exemptions, which expired on July 8, 2021 [86 FR 34834]. The APA also requests the exemptions on behalf of 3 additional companies not included in the 2021 HOS exemptions. A copy of the request and additional correspondence modifying the request are in the docket at the beginning of this notice.
APA member companies have held waivers or exemptions during Independence Day periods each year since 2005. Copies of the initial request for an exemption, subsequent renewal requests, and all public comments received may be reviewed at
On June 16, 2022, FMCSA granted APA a waiver from the 14-hour and ELD regulations, effective June 28, 2022, through July 8, 2022. Prior to issuing the waiver, the Agency conducted a safety analysis of the 45 carriers included in APA's request. The Agency determined that 38 carriers were eligible for the waiver. The waiver allowed these carriers to operate with the requested relief for 11 days during the 2022 Independence Day period and provided the Agency with sufficient time to process APA's exemption request. A copy of the waiver is located at
Since 2005, FMCSA has determined that the level of safety associated with the transportation of fireworks would likely be equivalent to, or greater than, the level of safety obtained by complying with the 14-hour rule. In 2019, FMCSA reached the same conclusion when it granted APA relief from the ELD requirement. APA believes an equivalent level of safety will be achieved because the fireworks are transported over relatively short routes from distribution points to the site of the fireworks display, and normally in the morning when traffic is light. APA also believes that fatigued driving is reduced or eliminated because drivers spend considerable time installing, wiring, and safety-checking the fireworks displays at the site, followed by several hours off duty in the late afternoon and early evening prior to the event. During this off-duty time, the drivers are allowed to rest or take a nap. Additionally, these drivers would continue to use paper RODS in lieu of an ELD during the designated Independence Day periods. APA asserts that the scheduled off duty time and use of RODS will ensure that fatigued driving is managed.
On July 8, 2022, FMCSA published notice of APA's application and requested public comments (87 FR 40874). The Agency received one comment. AWM Associates, LLC, stated that FMCSA should deny the exemption because the requested timeframe of 11 days is unreasonable. AWM Associates noted that drivers are not required to use an ELD if they use paper logs no more than 8 days during any 30-day period and questioned why APA member companies would need an exemption from the 14-hour rule after July 5.
Based on the information APA provided, FMCSA determines that the requested period of 11 days is reasonable. APA explained in its application that fireworks displays are spread out over a period of 11 days because it would be impossible to deliver and shoot all 16,000 professional fireworks displays on July 4. To cover the 11-day period without the exemptions, APA states that its members would have to hire additional drivers with commercial driver's licenses (CDLs) and hazardous material endorsements for a very brief period. APA explains that it would be difficult or impossible to find enough qualified drivers for this part-time, holiday-specific work, and the increased cost could be passed along to the cities, towns and municipalities that contract these shows.
FMCSA has evaluated APA's application and the safety records of the 45 companies to which the exemptions would apply and grants the exemptions to 32 APA member companies. FMCSA believes that these 32 APA member companies will likely achieve a level of safety equivalent to or greater than the level of safety achieved without the exemption.
Prior to publishing the
FMCSA denies the exemptions for 13 APA member companies. FMCSA found that 12 member companies have vehicle and/or HM OOS rates higher than the national average as of August 9, 2022. The 13th member company was excluded because the company does not have a Hazardous Materials Safety Permit. Under these circumstances, FMCSA believes it would be inappropriate at this time to grant exemptions to these companies.
FMCSA grants the exemptions for a period June 28 through July 8 for two years subject to the terms and conditions of this decision and the absence of public comments that would cause the Agency to terminate the exemption under Section F below. The exemptions from 49 CFR 395.3(a)(2) and 49 CFR 395.8(a)(1)(i) are effective for the period June 28 through July 8 each year from 2023 through 2024.
The exemptions are limited to drivers employed by the 29 motor carriers previously covered by the exemptions, and drivers employed by the 3 additional carriers identified by an asterisk in the appendix table of this notice. Drivers covered by these exemptions will be able to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour limit. Drivers will be able to use
When operating under these exemptions, motor carriers and drivers are subject to the following terms and conditions:
1. Drivers must not drive more than 11 hours after accumulating 14 hours on duty prior to beginning a new driving period.
2. Drivers must have 10 consecutive hours off duty following 14 hours on duty prior to beginning a new driving period.
3. Drivers must use paper RODS and supporting documents, maintain RODS and supporting documents for 6 months from the date the record is prepared, and make RODS and supporting documents accessible to law enforcement upon request.
4. Drivers and carriers subject to the ELD requirements before June 28 must continue to use ELDs and comply with all ELD requirements, including maintaining ELD data for 6 months from the date the electronic record is generated and making ELD data accessible to law enforcement upon request.
5. Drivers must maintain a valid CDL with a hazardous materials endorsement and not be subject to an out-of-service order or loss of driving privileges.
6. Motor carriers must maintain a Hazardous Materials Safety Permit and Satisfactory safety rating assigned by FMCSA under the procedures in 49 CFR part 385.
7. Motor carriers must ensure their CMVs are properly marked as required by 49 CFR 390.21(a)-(d). Motor carriers operating rented CMVs may not rely on the marking provisions of 49 CFR 390.21(e).
8. Motor carriers must ensure they comply with the requirements for shipping papers, package marking, labeling, and placarding in 49 CFR part 172.
9. Drivers and motor carriers covered by the exemptions must comply with all other applicable provisions of the Federal Motor Carrier Safety Regulations (49 CFR parts 350-399) (FMCSRs) and Hazardous Materials Regulations (49 CFR parts 105-180) (HMRs).
10. Prior to the beginning of each period of operations during the exemption, FMCSA will ensure that each motor carrier possesses an active USDOT registration, minimum required levels of insurance, and was not subject to any “imminent hazard” or other out-of-service (OOS) orders. FMCSA will also conduct a comprehensive review of the safety performance history on each of the motor carriers listed in the appendix table during the review process. As part of this process, FMCSA will review its Motor Carrier Management Information System safety records, including inspection and crash reports submitted to FMCSA by State agencies.
11. Motor carriers may be investigated to evaluate compliance with the terms and conditions of this exemption, in addition to the FMCSRs and HMRs.
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.600, during the period these exemptions would be in effect, no State shall enforce any law or regulation applicable to interstate commerce that conflicts with or is inconsistent with the exemptions with respect to a firm or person operating under the exemptions. States may, but are not required to, adopt the same exemptions with respect to operations in intrastate commerce.
Motor carriers using exempt drivers must notify FMCSA within five business days of any crashes (as defined by 49 CFR 390.5) involving the operation of any its CMVs while operating under these exemptions. The notification must include the following information:
a. Identifier of the Exemptions: “APA”;
b. Date of the crash;
c. City or town, and State, in which the accident occurred, or which is closest to the scene of the crash;
d. Driver's name and driver's license State, number, and class;
e. Co-Driver's name and driver's license State, number, and class;
f. Vehicle company number and power unit license plate State and number;
g. Number of individuals suffering physical injury;
h. Number of fatalities;
i. The police-reported cause of the crash;
j. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations; and
k. The total driving time and the total on-duty time of the CMV driver at the time of the crash.
Reports filed under this provision shall be emailed to
FMCSA does not believe the motor carriers or drivers covered by these exemptions will experience any deterioration of their safety record. The exemptions will be rescinded if: (1) motor carriers and drivers operating under the exemptions fail to comply with the terms and conditions of the exemptions; (2) the exemptions have resulted in a lower level of safety than was maintained before the exemptions were granted; (3) the annual investigation yields unsatisfactory results; or (4) continuation of the exemptions would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Internal Revenue Service (IRS), Treasury.
Notice of filing and request for comments.
This notice of filing announces that a petition has been filed pursuant to Revenue Procedure 2022-26, 2022-29 I.R.B. 90, requesting that polyoxymethylene be added to the list of taxable substances under section 4672(a) of the Internal Revenue Code. This notice of filing also requests comments on the petition. This notice of filing is not a determination that the list of taxable substances is modified.
Written comments and requests for a public hearing must be received on or before February 27, 2023.
Commenters are encouraged to submit public comments or requests for a public hearing relating to this petition electronically via the Federal eRulemaking Portal at
Please contact Amanda F. Dunlap, (202) 317-6855 (not a toll-free number).
(a)
(b)
(1)
According to the petition, these are the chemical names typically used for the substance polyoxymethylene:
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Department of Veterans Affairs.
Notice.
The Department of Veterans Affairs (VA) is updating the monetary reimbursement rates for caskets and urns purchased for interment in a VA national cemetery or a VA-funded State or Tribal Veterans' cemetery of Veterans who die with no known next of kin and where there are insufficient resources for furnishing a burial container. The purpose of this notice is to notify interested parties of the rates that will apply to reimbursement claims that occur during calendar year 2023.
This reimbursement is effective January 1, 2023.
Jerry Sowders, National Cemetery Administration, Department of Veterans Affairs, 4850 Lemay Ferry Road, Saint Louis, MO 63129. The telephone number is 314-416-6369. This is not a toll-free number.
Section 2306(f) of title 38, United States Code, authorizes VA's National Cemetery Administration to furnish a casket or urn for interment in a VA national cemetery or a VA-funded State or Tribal Veterans' cemetery of the unclaimed remains of Veterans for whom VA cannot identify a next of kin, and determines that sufficient financial resources for the furnishing of a casket or urn for burial are not available. VA established regulations to administer this authority as a reimbursement benefit in 38 CFR 38.628.
In accordance with the regulation, reimbursement for a claim received in any calendar year will not exceed the average cost of a 20-gauge metal casket or a durable plastic urn during the fiscal year preceding the calendar year of the claim, as determined by VA.
Average costs are based on market price analysis for 20-gauge metal caskets, designed to contain human remains, with a gasketed seal, and external rails or handles. The same analysis is completed for durable plastic urns, designed to contain human remains, which include a secure closure to contain the cremated remains.
Using this approach, in fiscal year 2022, the average costs were determined to be $1,115.00 for caskets and $106.00 for urns. Accordingly, the maximum reimbursement rates payable for qualifying interments occurring during calendar year 2023 are $1,115.00 for caskets and $106.00 for urns.
Denis McDonough, Secretary of Veterans Affairs, approved this document on December 19, 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.
Department of Veterans Affairs.
Notice.
The Department of Veterans Affairs (VA) is updating the monetary allowance payable for qualifying interments that occur during calendar year (CY) 2023, which applies toward the private purchase of an outer burial receptacle (or “graveliner”) for use in a VA national cemetery. The allowance is equal to the average cost of Government-furnished graveliners less any administrative costs to VA. The purpose of this notice is to notify interested parties of the average cost of Government-furnished graveliners, administrative costs that relate to processing and paying the allowance and the amount of the allowance payable for qualifying interments that occur in CY 2023.
This allowance is effective on January 1, 2023.
William Carter, Chief of Budget Execution Division, National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Telephone: 202-461-9764 (this is not a toll-free number).
38 U.S.C. 2306(e)(3), (4) authorizes VA to provide a monetary allowance for the private purchase of an outer burial receptacle for use in a VA national cemetery where its use is authorized. The allowance for qualified interments that occur during CY 2023 is the average cost of Government-furnished graveliners in fiscal year (FY) 2022, less the administrative cost incurred by VA in processing and paying the allowance in lieu of the Government-furnished graveliner.
The average cost of Government-furnished graveliners is determined by taking VA's total cost during a fiscal year for single-depth graveliners that were procured for placement at the time of interment and dividing it by the total number of such graveliners procured by VA during that fiscal year. The calculation excludes both graveliners pre-placed in gravesites as part of cemetery gravesite development projects and all double-depth graveliners. Using this method of computation, the average
The administrative cost is based on the costs incurred by VA during CY 2022 that relate to processing and paying an allowance in lieu of the Government-furnished graveliner. This cost has been determined to be $9.00.
The allowance payable for qualifying interments occurring during CY 2023, therefore, is $400.00.
Denis McDonough, Secretary of Veterans Affairs, approved this document on December 19, 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.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the federally threatened `i`iwi (
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Earl Campbell, Project Leader, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard Room 3-122, Honolulu, HI 96850; telephone 808-792-9400. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native Hawaiian organizations, the scientific community, industry, or any other interested parties concerning this proposed rule.
We particularly seek comments for the islands of Kaua`i, Maui, and Hawai`i, in the State of Hawaii concerning:
(1) 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;
(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat; or
(e) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
In addition, we seek comment regarding whether and how this information would differ under the factors that the pre-2019 regulations identify as reasons why designation of critical habitat may be not prudent.
(2) Specific information on:
(a) The amount and distribution of `i`iwi habitat;
(b) Any additional areas occurring within the range of the species in the State of Hawaii, including on the islands of Moloka`i and O`ahu, 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 protection, 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 the critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the time of listing, we particularly seek comments regarding whether occupied areas are adequate for the conservation of the species. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as habitat for the species.
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(4) 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.
(5) 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.
(6) 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, in particular for those based on a conservation program or plan. These may include Federal, Tribal, State, county, local, or private lands with permitted conservation plans covering the species in the area such as habitat conservation plans, safe harbor agreements, or conservation easements, or non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. Detailed information regarding these plans, agreements, easements, and partnerships is also requested, including:
(a) The location and size of lands covered by the plan, agreement, easement, or partnership;
(b) The duration of the plan, agreement, easement, or partnership;
(c) Who holds or manages the land;
(d) What management activities are conducted;
(e) What land uses are allowable; and
(f) If management activities are beneficial to the 'i'iwi and its habitat.
If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.
(7) 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)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific information available.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. Based on the new information we receive (and any comments on that new information), our final critical habitat designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or 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.
We will hold a public informational meeting and public hearing on the date and at the times listed in
The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral
The Service is committed to providing access to the public informational meeting and public hearing for all participants. Closed captioning will be available during the public informational meeting and public hearing. Further, a full audio and video recording and transcript of the public hearing will be posted online at
Please refer to the final listing rule for the i'iiwi, which published in the
In accordance with our joint policy on peer review published in the
The 'i'iwi is a bird endemic to the Hawaiian Islands whose name is often anglicized to “iiwi.” We prefer to, and will, include Hawaiian language spellings, including diacritical marks, to the degree possible and appropriate in the preambles of our
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would likely result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the
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.
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 species status 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; and (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. 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 the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:
(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;
(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
As discussed in the final listing rule (82 FR 43873; September 20, 2017), there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our species status report and final listing determination for the `i`iwi, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to `i`iwi and that those threats in some way can be addressed by the Act's section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the `i`iwi.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the `i`iwi 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 habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is 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 `i`iwi.
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
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 `i`iwi is an endemic Hawaiian forest bird belonging to the honeycreeper subfamily, Drepanidinae, of the Fringillidae (finch family). Historical abundance estimates are not available, but the `i`iwi was considered one of the most common of the native forest birds in Hawaii by early naturalists and was found from sea level to the tree line across all the major islands (Banko 1981, pp. 1-2). In the late 1800s, `i`iwi began to disappear from low-elevation forests due to habitat loss and avian diseases (Banko 1981, pp. 2-3), and by the mid-1900s, the species was largely absent from sea level to mid-elevation forests (Munro 1944, p. 94). Today `i`iwi are no longer found on Lanai and only a few individuals may be found on O'ahu, Moloka'i, and west Maui. Remaining populations of `i`iwi are restricted to high-elevation forests above 3,937 feet (ft) (1,200 meters (m)) on Hawai`i Island, east Maui, and Kaua`i because these areas contain temperatures low enough to reduce or inhibit the spread of avian malaria and avian pox, carried by
`I`iwi are found primarily in closed canopy, montane wet or mesic forests of tall stature, dominated by native `ōhi`a (
On the islands of Hawai`i, Kaua`i, and Maui, the three islands that currently support populations of `i`iwi, the species breeds and winters in mesic and wet forests that are dominated by `ōhi`a and koa trees (Fancy and Ralph 1998, p. 3). `I`iwi do not demonstrate high fidelity to a local breeding area (Fancy and Ralph 1998, p. 9); rather, individual birds switch breeding sites from year to year to take advantage of localized nectar availability (Fancy and Ralph 1998, p. 9). `I`iwi pairs remain together during the breeding season and defend a small area around their nest, but disperse after breeding and raising young (Fancy and Ralph 1998, p. 2). The `i`iwi breeding season starts as early as October and continues through to the following August (Fancy and Ralph 1998, p. 7). However, the majority of breeding occurs from February through June, coinciding with peak flowering of `ōhi`a (Fancy and Ralph 1998, p. 2). `I`iwi construct cup-shaped nests comprised of twigs and lined with lichens and moss in the upper canopy of `ōhi`a trees at an average nest height of 23.6 ft (7.2 m) (Fancy and Ralph 1998, p. 8).
`Ōhi`a and other flowering trees and shrubs are distributed across the landscape and flower asynchronously (Ralph and Fancy 1995, pp. 735-741). `I`iwi require large areas of suitable habitat for foraging. They are strong fliers that move long distances to locate nectar sources (Fancy and Ralph 1998, p. 3;). `I`iwi move several miles (several kilometers) in search of large forest patches of seasonally asynchronous flowering trees or shrubs (Guillaumet et al. 2017, p. 1). `I`iwi forage in flocks of two to nine `i`iwi and with other Hawaiian honeycreeper species such as `Apapane (
We derive the specific physical or biological features essential to the conservation of `i`iwi from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the species status report (Service 2016, entire; available on
(1) Multiple patches of seasonally flowering trees including `ōhi`a and māmane and/or shrubs that collectively provide a year-round nectar source. The number of patches of flowering trees and shrubs needed may be few if patch size is large. For example, a few large contiguous areas of forest containing seasonally asynchronously flowering trees and shrubs that are several square miles (several kilometers) in size, or many small patches with concentrated, seasonally asynchronously flowering trees and shrubs would meet the `i`iwi's year-round nectar source needs. Patches can be close together, such as individual flowering trees a few hundred feet (hundred meters) apart in an open landscape, or far apart, such as large forest patches of seasonally asynchronous flowering trees or shrubs as much as several miles (several kilometers) apart.
(2) Tall stature trees (height taller than 26 ft (8 m)) characteristic of a mesic and wet forest ecosystem, including `ōhi`a and koa for nesting. We define tall stature forest as forest with a minimum canopy height of 26 ft (8 m) based on mean nest height for `i`iwi of 24 feet.
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. As discused above, `i`iwi habitat is characterized by mesic and wet forests that are dominated by `ōhi`a and koa trees. This ecosystem is a multi-layered structure of tall canopy trees, secondary shrubs (
Any stressors that result in further degradation or fragmentation of the forests on which the `i`iwi relies for foraging and nesting are likely to exacerbate the impacts of avian disease on the species and directly affect habitat features which `i`iwi rely on for their life history processes. These stressors include invasive plants, which outcompete and displace native `ōhi`a. Several species of nonnative grasses are widely documented to fuel a grass/fire cycle of intrusion into Hawai`i's native `ōhi`a forests, further degrading biodiversity. In addition, feral ungulates including pigs (
Features essential to the conservation of `i`iwi may require special management considerations to reduce the following threats: (1) extirpation of native avian pollinators by mosquito-borne diseases which negatively impact mesic and wet forest health and persistence; (2) degradation of forest habitat by nonnative ungulates; (3) establishment and spread of habitat-altering nonnative plants; and (4) spread of nonnative pathogens including those that cause rapid `ōhi`a death, a fungal wilt disease.
Management actions that could minimize or ameliorate these threats include, but are not limited to, removal of mosquito breeding sources (such as application of larvicides to standing water), control or eradication of significant habitat-modifying invasive plants, ungulate removal and exclusion fencing, reduction of the spread of rapid `ōhi`a death and other plant pathogens, and habitat restoration to encourage multiple types of native flowering plants at higher elevations. These management actions would result in the enhancement of `i`iwi breeding and foraging areas. In addition, the incompatible insect technique may be used in some areas to limit southern house mosquito populations. This technique involves the release of male southern house mosquitoes infected with
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 not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. The area of occupied `i`iwi habitat fulfills the species' recovery criteria for size and distribution of forest and shrubland
To determine the area occupied at the time of listing, we relied primarily on a summary of abundance, distribution, and trends compiled by the U.S. Geological Survey (Paxton et al. 2013, entire). This dataset represents the most recent and best available dataset for `i`iwi populations. Where this summary was incomplete, specifically within the Kula region of Maui, we used information provided by the National Park Service and the Maui Forest Bird Recovery Project (Judge et al. 2019, p. 34). Rangewide, `i`iwi are constrained to a narrow band of montane forest at an elevation of 4,265-6,233 ft (1,300-1,900 m). Most `i`iwi are found on the island of Hawai`i (90 percent), followed by east Maui (about 10 percent), and Kaua`i (less than 1 percent). Relict populations may exist on O`ahu, west Maui, and Moloka`i (Paxton et al. 2013, p. 10).
Within occupied areas, we identified the areas that support the highest densities of `i`iwi. Areas of `i`iwi abundance are proxies for patches of flowering `ōhi`a and other nectar sources within mesic and wet forest ecosystems. `I`iwi are known to undertake seasonal movements that mirror `ōhi`a flowering periods. Due to the variability of mesic and wet forest ecosystems and the limitations of satellite imagery to distinguish physical and biological features, `i`iwi abundance was used as a proxy for seasonal flowering `ōhi`a and other nectar sources. Therefore, forest bird surveys conducted during the late 1970s and early 1980s (Scott et al. 1986, entire) were our primary source of information for delineating high-density areas. More recent surveys (Paxton et al. 2013, entire) show some contraction of the species' range, particularly at lower elevations. However, the high-density bands described in Paxton et al. 2013 correspond closely with 1970s-80s density maps. Because of this close correspondence and because the older mapped densities provide more detailed information for locations of high-density populations, both across and along the elevation contour, we relied primarily on the older dataset to delineate the highest density areas. We also considered the most recent surveys for the Kula region on Maui conducted by the National Park Service and Maui Forest Bird Recovery Project (Judge et al. 2019, p. 34).
`I`iwi foraging behavior required that we delineate critical habitat areas that are large enough to ensure regionally resilient populations. To ensure redundancy and representation of the species at a rangewide scale, we determined that the islands of Kaua`i, Maui, and Hawai`i should be included in the critical habitat designation. These three islands represent the functional distribution of the species and are separated by enough distance that if one island suffered a catastrophic population decline due to a hurricane or other environmental catastrophe, populations on other islands would likely be spared. Populations across this distribution also represent the genetic, ecological, and behavioral diversity of the species. For Maui and Hawai`i, the two islands that support multiple populations, we also considered redundancy and representation at an island scale. Maintaining habitat to support multiple regional populations on each island safeguards against the effects of smaller-scale catastrophic events and ensures inclusion of diverse habitats that represent the behavioral and ecological diversity of the species. Based on the Scott et al. (1986) dataset, we included all areas with a maximum mapped density of 100 birds per square kilometer (birds/km
We calculated the area required to support a highly resilient population by multiplying regionally specific population densities by 5,000. For all units except the Alaka`i Plateau Unit on Kaua`i, we used the current highest density estimate for that respective unit. In the Alaka`i region,`i`iwi range contraction and population decline has been precipitous over the last 20 years due to avian disease; however, abundant habitat still exists and carrying capacity is high, therefore we used historical densities to maintain this critical habitat area for `i`iwi. Specifically, we used the average of the interior and exterior survey densities for the Alaka`i Plateau survey area from the year 2000 as the most representative of `i`iwi density and habitat carrying capacity (Paxton et al. 2013, p. 57). Year 2000 survey data were used for the Alaka`i Plateau area because this survey data point represents the most recent survey data prior to the rapid population decline of `i`iwi beginning around year 2000, due primarily to avian disease.
Through further analysis, including a review of satellite imagery and the area required to support long-term viability for a range of vertebrate species (Traill et al. 2010, p. 31), we determined that two geographical regions, the West Maui region and the Kohala region on Hawai`i Island, were not large enough to support a population of 5,000 birds. Therefore, we did not delineate critical habitat within these two regions.
Because our critical habitat areas concentrate on areas of high `i`iwi density as surveyed in the 1970s and 80s, we used satellite imagery and land management information to refine the larger contiguous areas containing high `i`iwi densities. Specifically, we removed all parcels that were smaller than 1,235 acres (ac) (500 hectares (ha)), unless they were owned by a State or Federal agency, or already managed for conservation. Small private parcels were found to have negligible identified physical or biological features essential for `i`iwi conservation and represented a small proportion of the area that otherwise meets our criteria for critical habitat designation. In order to provide for adequate `i`iwi foraging areas encompassing one or more physical and biological features and prevent an artificial range constriction of high densities of `i`iwi, the delineated critical habitat area in every region is greater than the habitat area needed to support the conservation of the species. In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:
1. Habitat contains primarily mesic and wet forest ecosystem dominated by `ōhi`a and koa;
2. Area has high population density of `i`iwi, defined as more than 100 birds/
3. Each regional area meeting criteria 1 and 2 above is able to support at least 5,000 birds.
We then removed the smallest parcels (less than 1,235 ac (500 ha)) in private ownership within larger contiguous areas and all areas that were smaller than 62 ac (25 ha) and discontinuous from larger habitat units.
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 `i`iwi. 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 (
Seven units are proposed for designation based on one or more of the physical or biological features being present to support `i`iwi. Some units contain only some of the physical or biological features necessary to support the `i`iwi's use of that habitat. All units contain at least one of the identified physical or biological features and support multiple life-history processes for `i`iwi.
The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
We are proposing seven units as critical habitat for the `i`iwi. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the `i`iwi. The seven units we propose as critical habitat are: (1) Alaka`i Plateau; (2) Kula; (3) East Haleakalā; (4) Windward Hawai`i; (5) Ka`ū; (6) South Kona; and (7) North Kona. All units were occupied at the time of listing and are currently occupied. Table 1 shows the proposed critical habitat units, their ownership, and the approximate area of each unit.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the `i`iwi, below.
The Alaka`i Plateau Unit consists of 12,510 ac (5,063 ha) of montane wet forest ecosystem from Koke`e State Park to the summit of Mount Wai`ale`ale, in Kaua`i County. The unit consists of State lands within Alaka`i Wilderness Preserve, Nā Pali-Kona Forest Reserve, and Hono O Nā Pali Natural Area Reserve, and some private land. State lands comprise approximately 83 percent and private land approximately 17 percent of the Alaka`i Plateau Unit. Approximately 75.1 percent, or 9,393 ac (3,801 ha) of the Alaka`i Plateau Unit is within already designated critical habitat for species other than the `i`iwi. This unit is essential for maintaining the geographical range of the `i`iwi and, therefore, contributing to the redundancy and representation necessary for species' recovery. In particular, the Kaua`i `i`iwi population is important for maintaining the species' genetic diversity, as it is likely there is little or no genetic exchange between `i`iwi on Kaua`i Island and Maui Island, the nearest island to Kaua`i with a substantial `i`iwi population. `I`iwi is not known to fly long distances over open water and the two islands are separated by over 200 miles (mi) (322 kilometers (km)) of open ocean. Threats identified within Alaka`i Plateau Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering invasive plants; and the rapid `ōhi`a death fungal disease. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, feral ungulate control, invasive plant control, and measures to reduce the spread of rapid `ōhi`a death (see Special Management Considerations or Protection, above). There are five land parcels defined by landownership within Alaka'i Plateau Unit: State of Hawaii Department of Land and Natural Resources (DLNR), Alaka`i Wilderness Preserve and Nā Pali-Kona Forest Reserve and Hono O Nā Pali Natural Area Reserve total 10,359 ac (4,192 ha); Alexander & Baldwin, Inc. total 203 ac (82 ha); and Robinson Family Partners total 1,948 ac (788 ha).
The Kula Unit consists of 5,226 ac (2,115 ha) on the west slope of Haleakalā Volcano, in Maui County. This unit consists of State lands within Kula Forest Reserve and the Papa`anui Tract of Kahikinui Forest Reserve, and some private land. State lands comprise approximately 84 percent, and private land approximately 16 percent, of the Kula Unit. Approximately 99 percent, or 5,171 ac (2,093 ha), of the Kula Unit is within already designated critical habitat for species other than the `i`iwi. The Kula Unit is comprised of mixed introduced/native mesic montane forest with sub-alpine shrubland (Judge et al. 2019, p. 7), representing different habitat types than other units, which are predominantly native wet montane forest. This unit is essential for maintaining the geographical range, as well as the ecological and behavioral diversity, of the species, therefore contributing to the redundancy and representation necessary for species' recovery. Threats identified within Kula Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; and fire. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, and fire management planning and wildfire response (see Special Management Considerations or Protection, above). There are three land parcels defined by landownership within Kula Unit: DLNR, Kula Forest Reserve and Papa`anui Tract of Kahikinui Forest Reserve total 3,518 ac (1,424 ha); DLNR, Kula Forest Reserve is 878 ac (355 ha); and Ka`ono`ulu Ranch is 830 ac (336 ha).
The East Haleakalā Unit consists of 19,393 ac (7,848 ha) on the north and east slopes of Haleakalā Volcano, Maui County. This unit consists of Federal lands within Haleakalā National Park; State lands within Ko`olau Forest Reserve, Hāna Forest Reserve, Kīpahulu Forest Reserve, and Hanawī Natural Area Reserve; and some private lands. Federal lands comprise approximately 29 percent, State lands approximately 53 percent, and private land approximately 18 percent of the East Haleakalā Unit. Approximately 82 percent, or 15,951 ac (6,455 ha), of the Haleakalā Unit is within already designated critical habitat for species other than the `i`iwi. The Haleakalā Unit is comprised predominantly of native wet montane forest and some native sub-alpine shrubland. This unit is essential for maintaining the geographical range, as well as the ecological and behavioral diversity of
The Windward Hawai`i Unit consists of 141,085 ac (57,095 ha) on the east slopes of Mauna Kea and Mauna Loa Volcanos, Hawai`i County. This unit consists of Federal lands within Hawai`i Volcanoes National Park and Hakalau Forest National Wildlife Refuge, Hakalau Forest Unit; State lands within Kapāpala Forest Reserve, Upper Waiākea Forest Reserve, Hilo Forest Reserve, Manowaiale`e Forest Reserve, Mauna Kea Forest Reserve, Pu`u Maka`ala Natural Area Reserve, and Laupāhoehoe Natural Area Reserve; and lands administered by the Department of Hawaiian Homelands (DHHL); and some private lands. Federal lands comprise approximately 25 percent, State lands approximately 67 percent, and private land approximately 8 percent of the Windward Hawai`i Unit. Approximately 43 percent, or 60,777 ac (24,595 ha) of the Windward Hawai`i Unit is within already designated critical habitat for species other than the `i`iwi. The Windward Hawai`i Unit is comprised predominantly of native wet montane forest and some higher elevations native mesic montane forest. The Windward Hawai`i Unit contains more than half of the `i`iwi population Statewide and has the highest `i`iwi densities within the State (Scott et al. 1986, p. 160). Approximately 348,579 `i`iwi, or 57.8 percent of the entire Statewide `i`iwi population occupy the Windward Hawai`i Unit (Paxton et al. 2013, p. 10). This unit is essential for maintaining the species' geographical range, contributing to the redundancy and representation necessary for its recovery. Threats identified within Windward Hawai`i Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; fire; and rapid `ōhi`a death. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, fire management planning and wildfire response; and measures to reduce the spread of rapid `ōhi`a death (see Special Management Considerations or Protection, above). There are eighteen land parcels defined by landownership within Windward Hawai'i Unit: Hawai`i Volcanoes National Park total 9,463 ac (3,830 ha) over two parcels; Kamehameha Schools total 13,308 ac (5,386 ha) over two parcels; DLNR, Kapāpala Forest Reserve is 588 ac (238 ha); DLNR, Upper Waiākea Forest Reserve and Pu`u Maka`ala Natural Area Reserve is 71,836 ac (29,071 ha); Hakalau Forest National Wildlife Refuge, Hakalau Forest Unit is 25,231 ac (10,211 ha) over two parcels; DLNR, Hilo Forest Reserve, Kaiwiki Section is 71 ac (29 ha); DLNR, Hilo Forest Reserve, Piha Section is 2,420 ac (979 ha); DLNR, Hilo Forest Reserve, Laupāhoehoe Section and Laupāhoehoe Natural Area Reserve is 7,680 ac (3,108 ha); Department of Hawaiian Homelands is 4,035 ac (1,633 ha) over two parcels; DLNR, Hilo Forest Reserve, Humu`ula Section is 2,768 ac (1,120 ha); DLNR, Manowaiale`e Forest Reserve is 672 ac (272 ha); DLNR, Mauna Kea Forest Reserve is 1,477 ac (598 ha); Kūka`iau Ranch is 87 ac (35 ha); and Parker Ranch is 1,449 ac (586 ha).
The Ka`ū Unit consists of 32,458 ac (13,136 ha) on the southeast slope of Mauna Loa Volcano, Hawai`i County. This unit consists of State lands within Ka`ū Forest Reserve and Kapāpala Forest Reserve, and some private lands. State lands comprise approximately 99 percent, and private land approximately 1 percent of the Ka`ū Unit. Approximately 17 percent, or 5,498 ac (2,225 ha), of the Ka`u Unit is within already designated critical habitat for species other than the `i`iwi. The Ka`ū Unit is comprised of native wet montane forest in the southern portion, transitioning to native mesic montane forest in the northern portion of the unit. Native forest in the Ka`ū Unit provides habitat connectivity between `i`iwi that inhabit the Windward Hawai`i Unit and `i`iwi that inhabit the South Kona Unit. The Ka`ū Unit is essential for maintaining the geographical range of the species and redundancy and representation necessary for species' recovery. Threats identified within Ka`ū Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; fire; and rapid `ōhi`a death. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, fire management planning and wildfire response; and measures to reduce the spread of rapid `ōhi`a death (see Special Management Considerations or Protection, above). There are five land parcels defined by landownership within Ka`ū Unit: DLNR, Ka`ū Forest Reserve is 31,414 ac (12,713 ha); DLNR, Kapāpala Forest Reserve is 546 ac (221 ha); DLNR, Ka`ū Forest Reserve is 99 ac (40 ha); and The Nature Conservancy total 399 ac (162 ha) over two parcels.
The South Kona Unit consists of 51,376 ac (20,791 ha) on the west slope of Mauna Loa Volcano, Hawaii County. This unit consists of Federal lands within Hakalau Forest National Wildlife Refuge, Kona Forest Unit; State lands within South Kona Forest Reserve, Waiea Natural Area Reserve, and Kipāhoehoe Natural Area Reserve; and private lands. Federal lands comprise approximately 16 percent, State lands comprise approximately 16 percent, and private land approximately 68 percent of the South Kona Unit. Approximately 13 percent, or 6,456 ac (2,613 ha), of the South Kona Unit is within already designated critical habitat for species other than the `i`iwi. The South Kona Unit is comprised of native wet lowland forest at lower elevations and native wet and mesic montane forest at middle and upper elevations. Unlike other units, the South Kona Unit contains large areas of native wet lowland forest at elevations as low as 2,500 ft (762 m), representing the species' behavioral and ecological diversity. This unit is essential for maintaining the geographical range, as well as the diversity, of the species, therefore contributing to the redundancy and representation necessary for species' recovery. Threats identified within South Kona Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; fire; and rapid `ōhi`a death. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control,
The North Kona Unit consists of 13,599 ac (5,503 ha) on the north, west, and south slopes of Hualālai Volcano, Hawaii County. This unit consists of State lands within the Pu`u Wa`awa`a Forest Bird Sanctuary, Pu`u Wa`awa`a Forest Reserve, and Honua`ula Forest Reserve, and some private lands. State lands comprise approximately 70 percent, and private land approximately 30 percent of the North Kona Unit. Approximately 22 percent, or 3,029 ac (1,226 ha), of the North Kona Unit is within already designated critical habitat for species other than the `i`iwi. The North Kona Unit is comprised of mesic montane forest on the north slope and native wet and mesic montane forest on the west and south slopes of Hualālai Volcano. Collectively, the North Kona Unit is essential for maintaining the geographical range, as well as the ecological and behavioral diversity, of the species, therefore contributing to the redundancy and representation necessary for species' recovery. Threats identified within North Kona Unit include habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; fire; and rapid `ōhi`a death. Special management considerations or protection measures to reduce or alleviate threats may include ungulate control, invasive plant control, fire management planning and wildfire response; and measures to reduce the spread of rapid `ōhi`a death (see Special Management Considerations or Protection, above). There are four land parcels defined by landownership within North Kona Unit: DLNR, Pu`u Wa`awa`a Forest Bird Sanctuary and Pu`u Wa`awa`a Forest Reserve total 4,214 ac (1,705 ha); DLNR, Honua`ula Forest Reserve is 5,243 ac (2,122 ha); and Kamehameha Schools total 4,142 ac (1,676 ha) over two parcels.
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 August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
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: (1) if the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action.
In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but Congress also enacted some exceptions in 2018 to the requirement to reinitiate consultation on certain land management plans on the basis of a new species listing or new designation of critical habitat that may be affected by the subject federal action. See 2018 Consolidated Appropriations Act, Public Law 115-141, Div, O, 132 Stat. 1059 (2018).
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 as a whole 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, actions that would significantly diminish foraging and nesting opportunities for the `i`iwi. While we are currently unaware of any planned activities involving Federal actions that are of sufficient magnitude to impact the essential physical or biological features, known activities that have the potential to impact components of these features include, but are not limited to, road construction, development, crop production, cattle grazing, and forest extraction. In addition to the direct effects of tree removal on `i`iwi habitat, these activities also contribute to habitat degradation through the introduction and spread of nonnative species and compounding factors including diseases. Invasive plants outcompete and displace native `ōhi`a and koa trees used by native forest birds for foraging and nesting. Feral ungulates degrade native forest by spreading nonnative plant seeds and grazing on and trampling native vegetation, contributing to soil erosion (Mountainspring 1986, p. 95; Camp et al. 2010, p. 198). In addition, `ōhi`a trees are impacted by several diseases and natural processes, including `ōhi`a dieback, `ōhi`a rust, and rapid `ōhi`a death (ROD), the effects of which are likely compounded by each other and with nonnative species and climate change (Mueller-Dombois 1986, pp. 238-239; Anderson 2012, pp. 1-2; Friday et al. 2015, pp. 1-3; Keith et al. 2015, p. 1).
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.
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. 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 potentially exclude these areas, as well as decisions not to potentially exclude, to demonstrate that the decision is reasonable. We will make a final determination in the final rule on whether or not we will exclude these areas.
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. 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 criterion 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 `i`iwi 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 `i`iwi (Industrial Economics, Incorporated 2021). 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 (
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 `i`iwi, first we identified, in the IEM dated July 29, 2022, probable incremental economic impacts associated with the following categories of activities: (1) landscape-level avian malaria control; (2) emergency response during volcanic activity; and (3) activities on forest reserve lands, including vegetation management along roadways, water lines, and utility lines; tree removal for building maintenance and removal of hazard trees; harvest of forest products; operation of recreational vehicles; and native plant collection for cultural purposes.
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 only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the `i`iwi 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 the species. If we finalize this proposed critical habitat designation, 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 (
The proposed critical habitat designation for the `i`iwi includes 7 units, subdivided into 60 subunits, totaling approximately 275,647 ac (111,554 ha). Lands within the designation are under Federal (18 percent), State (60 percent), and private (22 percent) ownership. All units and subunits were occupied at the time of listing and are currently occupied. The incremental costs of designating critical habitat for the `i`iwi are likely to include additional administrative effort associated with section 7 consultations, as well as project modifications. There may also be incremental costs outside of the section 7 consultation process.
The additional administrative effort associated with considering adverse modification during the section 7 consultation process was estimated using historical consultation data. We estimate up to 11 technical assistances, 5 informal consultations, and 3 formal annually over the next 10 years. The maximum annual cost associated with these consultations is estimated not to
In many instances, critical habitat designation is not likely to change our recommendation for project modification during future consultations. However, in some instances, we may recommend modifications associated specifically with avoiding adverse modification to critical habitat.
• For activities with a Federal nexus that would involve entry into critical habitat susceptible to rapid `ōhi`a death, we anticipate recommending disinfecting gear to limit the transmission of fungal pathogens associated with rapid `ōhi`a death and limiting access into pristine areas. While we would not make these recommendations during a consultation that only considered jeopardy, they are part of best practices promoted by the Service and widely adopted by other agencies and conservation organizations. Therefore, the recommendations are unlikely to result in incremental costs because they are likely already part of standard protocols absent critical habitat.
• For activities with a Federal nexus involving koa thinning and `ōhi`a harvest, we may recommend limiting forest extraction year-round to avoid adverse modification. Absent critical habitat, we would likely only recommend limiting forest extraction during the `i`iwi breeding season. Data are not available to develop a potential range of costs per year associated with this limitation. However, given that the Statewide value of forest extraction is estimated to be only $47.6 million (2022 dollars), and that baseline forest extraction in proposed critical habitat is likely to constitute a small fraction of the total forest extraction across the State, it is very unlikely that the costs attributable to critical habitat for the `i`iwi will exceed $100 million annually.
• In unpredictable cases, a Federal agency may need to act in response to volcanic activity to save human lives and would subsequently consult with the Service under emergency consultation provisions. Data are not available to forecast costs associated with modifications to or restoration activities following emergency response efforts during volcanic activity. Even if historical costs were available, the incremental costs associated with any given emergency response activity are likely to be highly context-specific.
Incremental costs may occur outside of the section 7 consultation process if the designation of critical habitat triggers additional requirements or project modifications under State or local laws, regulations, or management strategies. These types of costs typically occur if the designation increases awareness of the presence of the species or the need for protection of its habitat. Designation of critical habitat for the `i`iwi has the potential to result in (1) a decrease in recreational access allowed in State-managed forest reserves, and (2) an increase in permitting requirements for development in proposed critical habitat. Although we acknowledge the potential for these types of costs, the likelihood of these potential future effects is uncertain, and data with which to estimate incremental costs is unavailable. Similarly, there may be economic impacts associated with the perceived effects of critical habitat on land values. However, the likelihood and magnitude of such effects for this purpose are uncertain.
In summary, while the specific costs of critical habitat designation for the `i`iwi are subject to uncertainty, it is unlikely that, if adopted as proposed, the rulemaking would generate costs exceeding $100 million in a single year. Therefore, this proposed rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866.
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 this 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
In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for `i`iwi are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security.
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.
When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. In the case of `i`iwi, the benefits of critical habitat include public awareness of the presence of `i`iwi and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for `i`iwi due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan, which provides conservation equal to or more than the protections that result from a critical habitat designation, would reduce those benefits of including that specific area in the critical habitat designation.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and their habitats. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on non-Federal lands, participating property owners are covered by an “enhancement of survival” permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. We also provide enrollees assurances that we will not impose further land—, water—, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion analysis based on permitted conservation plans (such as HCPs, SHAs, and CCAAs), we anticipate consistently excluding such areas if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the HCP/SHA/CCAA meets all of the following three factors (see the 2016 Policy for additional details):
a. The permittee is properly implementing the HCP/SHA/CCAA and is expected to continue to do so for the term of the agreement. An HCP/SHA/CCAA is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the HCP/SHA/CCAA, implementing agreement, and permit.
b. The species for which critical habitat is being designated is a covered species in the HCP/SHA/CCAA, or is very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the HCP/SHA/CCAA would also protect the habitat features of the similar species.
c. The HCP/SHA/CCAA specifically addresses that species' habitat and meets the conservation needs of the species in the planning area.
This proposed critical habitat designation includes areas that are covered by the following permitted plan providing for the conservation of `i`iwi:
We have identified the following areas that we have reason to consider excluding because of the SHA:
We will work with Kamehameha Schools and the Three Mountain Alliance Watershed Partnership throughout the public comment period and during development of the final designation of critical habitat for `i`iwi. We seek comments on whether the existing management and conservation efforts of Kamehameha Schools and the Three Mountain Alliance partners meet our criteria for exclusion from the final designation under section 4(b)(2) of the Act.
We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service.
Shown below is a non-exhaustive list of factors that we consider in evaluating how non-permitted plans or agreements affect the benefits of inclusion or exclusion. These are not required elements of plans or agreements. Rather, they are some of the factors we may consider, and not all of these factors apply to every plan or agreement.
(i) The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the realization of the benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the conservation plan.
(iii) The degree to which agency review and required determinations (
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
(v) The demonstrated implementation and success of the chosen mechanism.
(vi) The degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species.
(vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.
(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.
The proposed critical habitat designation includes areas that are covered by the following non-permitted management plans providing for the conservation of `i`iwi:
After considering the factors described above, we have identified the following areas that we have reason to consider excluding because of non-permitted plans, agreements, or partnerships. Our consideration of an area for exclusion is based on all non-permitted plans, agreements, and/or partnerships for the area and the overall benefit these planning documents and associated conservation actions provide for the protection, maintenance, enhancement, and/or restoration of habitat `i`iwi use for nesting and foraging. In all cases, we are considering excluding areas where private landowners are actively participating in the restoration or management of habitats essential to conservation of iiwi, allowing surveys or monitoring of iiwi and its habitat, or taking steps to protect and increase numbers of iiwi that occur on their properties.
Specific benefits of conservation management and rationale for considering exclusion are described below. We welcome any information regarding planning documents or other information we may have overlooked pertaining to the areas we are considering for exclusion and areas we are not considering for exclusion. We will work with landowners throughout the public comment period and during development of the final designation of critical habitat for `i`iwi and seek comments on whether the existing management and conservation efforts of landowners meet our criteria for exclusion from the final designation under section 4(b)(2) of the Act.
The Nature Conservancy Wainiha Preserve was established by a conservation easement with Alexander & Baldwin, Inc., and is comprised of 7,050 ac (2,853 ha) in Wainiha Valley and is part of the Alaka`i Plateau. The management program of the Wainiha Preserve under the above described management plans includes preventing degradation of watershed and forest ecosystems by reducing feral ungulate damage, controlling invasive plants, monitoring and tracking the biological and physical resources in the preserve, preventing extinction of rare species in the preserve, and building public understanding and support for the preservation of natural areas. In addition, The Nature Conservancy is a member of the Kaua`i Watershed Alliance, whose goals include to conserve forest watershed and unique endemic plants and animals by construction of ungulate fences, ungulate removal, fence line surveys, and weed control. The Nature Conservancy also collaborates with the Kaua`i Forest Bird Recovery Project, which conducts research to understand the ecology of native forest birds, the threats they face, and the application of management strategies for recovering their populations. The conservation actions occurring within Alaka`i Plateau Unit under management by The Nature Conservancy, including Wainiha Preserve, the Kaua`i Watershed Alliance, and the Kaua`i Forest Bird Recovery Project, conserve and protect habitat important for `i`iwi nesting and foraging. These conservation actions reduce breeding sites of introduced southern house mosquitoes that carry avian malaria, encourage native forest regeneration, and reduce small mammal predator populations through control activities. Based on The Nature Conservancy's management under the Kaua`i Watershed Alliance Management Plan Update, Overall Management Strategy (2012), and collaboration with Kaua`i Watershed Alliance and the Kaua`i Forest Bird Recovery Project, we are considering excluding Alexander & Baldwin, Inc., lands from the final critical habitat designation for the `i`iwi because forest habitat used by `i`iwi within lands owned by Alexander & Baldwin, Inc. is protected from degradation by ungulate fencing and ungulate removal, and control of nonnative plants.
Ka`ono`ulu Ranch is a member of the Leeward Haleakalā Watershed Restoration Partnership, a watershed partnership that manages lands on leeward east Maui to conserve endemic plants and animals and conducts watershed protection (including native forest reforestation and wildfire response planning and fire suppression) to improve forest and shrubland habitats that `i`iwi use for nesting and foraging. Ka`ono`ulu Ranch has been and continues to be an active partner with the State of Hawaii's Department of Land and Natural Resources to reduce the numbers of feral ungulates and promote native plant regeneration across Leeward Haleakalā. The conservation actions of Ka`ono`ulu Ranch benefit habitat `i`iwi use for nesting and foraging by promoting forest regeneration and reducing breeding sites for introduced southern house mosquitoes that carry avian malaria.
Based on Ka`ono`ulu Ranch's management under the Kula Forest
Conservation actions being conducted in Waikamoi Preserve include control of feral ungulate populations; control of nonnative mammals, including rats (
Based on The Nature Conservancy's management of the Waikamoi Preserve under the Waikamoi Preserve Long-Range Management Plan, Fiscal Years 2019-2024; collaboration with the Maui Forest Bird Recovery Project and Haleakalā Ranch; and The Nature Conservancy's participation in the Leeward Haleakalā Watershed Restoration Partnership, we are considering excluding lands owed by Haleakalā Ranch from the final critical habitat designation for the `i`iwi.
Conservation actions being conducted in Waikamoi Preserve include bringing feral ungulate populations to zero within the preserve as rapidly as possible and preventing domestic livestock from entering the preserve; controlling or preventing entry of nonnative mammals, such as rats (
Based on The Nature Conservancy's management of the Waikamoi Preserve under the Waikamoi Preserve, Long-Range Management Plan, Fiscal Years 2019-2024; collaboration with the Maui Forest Bird Recovery Project; and participation with East Maui Irrigation, Inc., in the East Maui Watershed Partnership, we are considering excluding lands owned by East Maui Irrigation, Inc. from the final critical habitat designation for the `i`iwi.
The Department of Hawaiian Homelands' `Āina Mauna Legacy Program is a conservation initiative to restore and protect approximately 56,000 ac (22,662 ha) of native forest on Mauna Kea that is ecologically, culturally, and economically self‐sustaining for the Hawaiian Homelands Trust, its beneficiaries, and the community (Department of Hawaiian Homelands 2022, pp. 1-2).
Based on Department of Hawaiian Homelands's management under Department of Hawaiian Homelands' `Āina Mauna Legacy Program, and participation in the Mauna Kea Watershed Alliance, we are considering excluding these areas from the final critical habitat designation for the `i`iwi. These areas are held in trust for Hawaiian beneficiaries for the protection of native forest surrounding Mauna Kea.
The Kūka`iau Ranch conservation easement with The Nature Conservancy and Hawai`i Island Land Trust provides for conservation work including fencing, removal of pigs and goats, and restoration of native plant species. In addition, Kūka`iau Ranch is a member of the Mauna Kea Watershed Alliance, which conducts conservation activities to protect and enhance watershed ecosystems, including fencing and ungulate removal, nonnative plant control, and native forest restoration. In addition, Kūka`iau Ranch collaborates with county and other landowners in fire response planning to protect its and adjacent landowners' natural resources from fires. Since 2009, when the conservation easement with The Nature Conservancy and Hawai`i Island Land Trust was signed (College of Tropical Agriculture and Human Resources 2009, entire), Kūka`iau Ranch has built ungulate fencing, removed pigs and goats, and restored native plant species on its conservation lands. The conservation actions of Kūka`iau Ranch benefit habitat `i`iwi use for nesting and foraging by promoting forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria, nonnative plant control that improves recruitment of native trees, and fire suppression that benefits forest and shrubland habitat `i`iwi use for nesting and foraging by minimizing damage to these habitats from wildfire.
Based on Kūka`iau Ranch's management under the Kūka`iau Ranch conservation easement with The Nature Conservancy and Hawai`i Island Land Trust, participation in the Mauna Kea Watershed Alliance, and collaboration with the State of Hawaii's Department of Forestry and Wildlife and adjacent landowners in wildfire response, we are considering excluding this area from the final critical habitat designation for the `i`iwi.
Parker Ranch manages over 100,000 ac (40,469 ha) of land in the Hāmākua, North Kohala, and South Kohala Districts on Mauna Kea and the Kohala Mountains on the island of Hawai`i, and in 2021, the ranch announced it is seeking to collaborate with public and private partners to develop sustainable forestry programs on some of these lands (Parker Ranch 2021, entire). For its Waipunalei lands, Parker Ranch is developing a sustainable koa forestry program to rehabilitate forest areas damaged by cattle grazing (Parker Ranch 2022, entire). Parker Ranch is a member of the Mauna Kea Watershed Alliance, whose shared vision is to protect and enhance watershed ecosystems, biodiversity, and natural resources through responsible management while promoting economic sustainability and providing recreational, subsistence, educational, and research opportunities. The conservation measures of Parker Ranch through its sustainable koa forestry initiative provide benefits to habitat `i`iwi use for nesting and foraging by promoting koa forest regeneration, increasing soil-water retention capacity and improving ecosystem resilience to drying climate conditions, and controlling nonnative plants to improve recruitment of native trees.
Based on Parker Ranch's management under Parker Ranch's sustainable koa forestry initiative and participation in the Mauna Kea Watershed Alliance, we are considering excluding this area from the final critical habitat designation for the `i`iwi.
Conservation actions being conducted in the Ka`ū Preserve include preventing degradation of native forest by reducing feral ungulate damage, improving or maintaining the integrity of native ecosystems by reducing the effects of nonnative plants, conducting small mammal (including rodent) control and reducing the negative impacts of small mammals where possible, monitoring and tracking the biological and physical resources in the preserve and evaluating changes in these resources over time, encouraging biological and environmental research, preventing extinction of rare species in the preserve, building public understanding and support for the preservation of natural areas, and enlisting volunteer assistance for preserve management. The Nature Conservancy is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. Since its founding, The Nature Conservancy Ka`ū Preserve has built ungulate fencing around the Kaiholena Unit, which reduced the number of pigs to zero in that unit, and is conducting nonnative plant control. The conservation actions of The Nature Conservancy Ka`ū Preserve provide benefits to habitat `i`iwi use for nesting and foraging by improving forest regeneration and reducing breeding sites of introduced
Based on The Nature Conservancy's management of Ka`ū Preserve under the Ka`ū Preserve Hawai`i Island, Long-Range Management Plan, Fiscal Years 2013-2018, and participation in the Three Mountain Alliance Management Plan, December 31, 2007, we are considering excluding The Nature Conservancy's Ka`ū Preserve lands from the final critical habitat designation for the `i`iwi.
Once a former ranch, Kealakekua Mountain Reserve completed the Kealakekua Mountain Reserve Forest Legacy Program conservation easement with the State of Hawaii in 2011, to protect mesic and dryland native forest on Kealakekua Mountain Reserve lands. The Kealakekua Mountain Reserve management plan under the conservation easement outlines harvesting limitations that must be followed to insure regeneration of mesic and dryland native forest (dōTerra 2018, entire). In order to protect the immediate growth and regeneration of `iliahi or sandalwood trees, the management plan specifies only dead or severely damaged trees will be collected and that no living sandalwood trees should be harvested, which will allow existing healthy trees to grow to full maturity before they are harvested under sustainable tree management practices. The Kealakekua Mountain Reserve operates a large nursery, and various native Hawaiian trees and shrub species from the nursery are being out-planted at the Kealakekua Mountain Reserve. In addition, Kealakekua Mountain Reserve has availed itself of funding and technical assistance from the NRCS for projects on Kealakekua Mountain Reserve lands to conserve ground and surface water, increase soil health, and reduce soil erosion and sedimentation. The conservation actions of Kealakekua Mountain Reserve benefit habitat `i`iwi use for nesting and foraging by improved forest regeneration, water and soil conservation, increased soil-water retention capacity, and improved ecosystem resilience to drying climate conditions.
Based on Kealakekua Mountain Reserve's management of its lands under the Kealakekua Mountain Reserve Forest Legacy Program conservation easement and NRCS projects, we are considering excluding Kealakekua Mountain Reserve from the final critical habitat designation for the `i`iwi.
Between 2000 and 2015, Kamehameha Schools increased its active stewardship of native ecosystems under its `Āina Pauahi Natural Resources Management Program from 3,000 ac (1,124 ha) to 136,000 ac (55,037 ha), 35 times the number of acres under Kamehameha Schools' care in 2000, including lands within the South Kona Unit in this proposed critical habitat designation. In 2019, Kamehameha Schools entered into an agreement with Hāloa `Āina, a Native Hawaiian family-owned business dedicated to restoring native mesic and dryland forest (Big Island Video News 2019, entire). Under a 5-year license, the project will improve the native ecosystems consisting of remnant `iliahi and māmane forest on formerly degraded Kamehameha Schools agricultural lands in South Kona. Revenues generated from the harvest of dead and senescent sandalwood trees are directly reinvested in the subject property with the focus of conservation management. Hāloa `Āina is actively propagating `iliahi, māmane, and koa trees in its greenhouses for planting on Kamehameha Schools lands. Kamehameha Schools is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. The conservation actions of Kamehameha Schools benefit habitat `i`iwi use for nesting and foraging by promoting forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria through control of feral ungulates; nonnative plant control that improves recruitment of native trees; fire suppression that benefits forest and shrubland `i`iwi use for nesting and foraging by minimizing damage to these habitats by wildfire; and `iliahi and māmane forest restoration that conserves and enhances forest and shrubland habitat `i`iwi use for nesting and foraging, increases soil-water retention capacity, and improves ecosystem resilience to drying climate conditions.
Based on Kamehameha Schools' management of its lands under Kamehameha Schools' `Āina Pauahi Natural Resources Management Program, Hāloa `Āina Forest Restoration Agreement, and the Three Mountain Alliance Management Plan, we are considering excluding Kamehameha Schools lands from the final critical habitat designation for the `i`iwi.
Kealia Ranch is a 12,000-ac (4,856-ha) working cattle ranch founded in 1915, located in the South Kona District on leeward Mauna Loa Volcano on the island of Hawai`i. Kealia Ranch has availed itself of funding and technical assistance from the NRCS for projects on Kealia Ranch to conserve ground and surface water, increase soil health, and reduce soil erosion and sedimentation (Natural Resources Conservation Service 2022, entire). The Kealia Ranch is an immediate neighbor to the Hakalau National Wildlife Refuge, Kona Forest Unit, and cooperates with the refuge in areas such as weed control, wildfire suppression, emergency situations, and security (Kealia Ranch 2022, entire). From 1993-1998, Kealia Ranch participated in conservation efforts with the Service to save from extinction the last remaining population of `alalā or Hawaiian crow (
Based on Kealia Ranch's implementation of water and soil conservation projects through NRCS' Environmental Quality Incentives Program and cooperation with neighbors in areas including nonnative plant control and wildfire suppression, we are considering excluding Kealia Ranch lands from the final critical habitat designation for the `i`iwi.
The Kona Hema Preserve is comprised of 8,076 ac (3,268 ha) in four management units. Management activities on the Kona Hema Preserve are to prevent degradation of native forest and shrubland by reducing feral ungulate damage; to improve or maintain the integrity of native ecosystems in selected areas of the preserve by reducing the effects of nonnative plants; to conduct small mammal control and reduce the negative impacts of small mammals where possible; to monitor and track the biological and physical resources in the preserve and evaluate changes in these resources over time, and encourage biological and environmental research; to prevent extinction of rare species in the preserve; to build public understanding and support for the preservation of natural areas; and to enlist volunteer assistance for preserve management and the protection of the resources from fires in and around the preserve. The Nature Conservancy is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. The conservation actions of The Nature Conservancy Kona Hema Preserve benefit habitat `i`iwi use for nesting and foraging by improved forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria, by control of feral ungulates, by nonnative plant control that improves recruitment of native trees, and by small mammal control to reduce predation on nesting `i`iwi. Wildfire management and response benefit forest and shrubland habitat `i`iwi use for nesting and foraging by minimizing damage to these habitats by wildfire.
Based on The Nature Conservancy's management of the Kona Hema Preserve under the Forest Stewardship Management Plan for The Kona Hema Preserve and the Three Mountain Alliance Management Plan, December 31, 2007, we are considering excluding The Nature Conservancy's Kona Hema Preserve lands from the final critical habitat designation for the `i`iwi.
Kamehameha Schools' `Āina Pauahi Natural Resources Management Program implements Kamehameha Schools' conservation land stewardship policy through the protection and conservation of natural resources, water resources, and ancestral places (Kamehameha Schools 2022, entire). Between 2000 and 2015, Kamehameha Schools increased its active stewardship of native ecosystems under the program from 3,000 ac (1,124 ha) to 136,000 ac (55,037 ha), which is 45 times the number of acres under Kamehameha Schools' care in 2000, and includes lands within the North Kona Unit in this proposed critical habitat designation. Kamehameha Schools entered into an agreement in 2019, with Paniolo Tonewoods, LLC, to manage 1,300 ac (526 ha) of Kamehameha Schools lands upslope of Hōnaunau Forest Reserve that are mixed `ōhi`a/koa forest (Big Island Video News 2019, entire). Kamehameha Schools is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. The conservation actions of Kamehameha Schools benefit habitat `i`iwi use for nesting and foraging by promoting forest regeneration and reduction of mosquito breeding sites; weed control that improves recruitment of native trees; fire suppression that benefits forest and shrubland habitats by minimizing damage to these habitats by wildfire; and koa silviculture that conserves and enhances forest and shrubland habitat `i`iwi use for nesting and foraging, increases soil-water retention capacity, and improves ecosystem resilience to drying climate conditions.
Based on Kamehameha Schools' management of its lands under Kamehameha Schools' `Āina Pauahi Natural Resources Management Program; Paniolo Tonewoods, LLC, Forest Restoration Agreement with Kamehameha Schools; and the Three Mountain Alliance Management Plan, December 31, 2007, we are considering excluding Kamehameha Schools lands from the final critical habitat designation for the `i`iwi.
We have reason to consider excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the `i`iwi. Table 2 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but for which we are considering possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule.
In conclusion, for this proposed designation, we have reason to consider excluding the areas identified above based on other relevant impacts. We specifically solicit comments on the inclusion or exclusion of such areas. However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may 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. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action.
We are required by Executive Orders (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 number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
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. In our draft economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. The proposed critical habitat units are in remote wilderness areas that are not used for energy generation. 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
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 are not likely to 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 proposed rule would significantly or uniquely affect small governments. Small governments would be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. 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 `i`iwi 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 `i`iwi, and it concludes that, if adopted as proposed, 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 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.
In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that this proposed 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
Regulations adopted pursuant to section 4(a) of the Act are exempt from 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
A complete list of references cited in this proposed rule 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 Pacific Islands Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
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) * * *
(b)
(1) Critical habitat units are depicted for Kauai, Maui, and Hawaii Counties, Hawaii, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of iiwi consist of the following components:
(i) Multiple patches of seasonally flowering trees, including ohia (
(ii) Tall stature trees (height taller than 26 feet (8 meters)) characteristic of a mesic and wet forest ecosystem, including ohia and koa (
(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 the effective date of the final rule.
(4) Data layers defining map units were created using summaries of abundance, distribution, and trends compiled by the U.S. Geological Survey. Where this summary was incomplete, specifically within the Kula region of Maui, we used information provided by the National Park Service and the Maui Forest Bird Recovery Project. 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) Alakai Plateau Unit: Kauai County, Hawaii.
(i) The Alakai Plateau Unit comprises 12,510 acres (ac) (5,063 hectares (ha)) of occupied habitat in Kauai County. This unit consists of State and privately owned lands.
(ii) Map of Alakai Plateau Unit follows:
(7) Kula Unit: Maui County, Hawaii.
(i) The Kula Unit comprises 5,226 ac (2,115 ha) of occupied habitat in Maui County on the west slope of Haleakala Volcano. This unit consists of State and privately owned lands.
(ii) Map of Kula and East Haleakala Units follows:
(8) East Haleakala Unit: Maui County, Hawaii.
(i) The East Haleakala Unit comprises 19,393 ac (7,848 ha) of occupied habitat in Maui County on the northeast slope of Haleakala Volcano. This unit consists of lands owned by the National Park Service, the State of Hawaii, and private landowners.
(ii) Map of East Haleakala Unit is provided at paragraph (7)(ii) of this entry.
(9) Windward Hawaii: Hawaii County, Hawaii.
(i) The Windward Hawaii Unit comprises 141,085 ac (57,095 ha) of occupied habitat in Hawaii County on the east slopes of Mauna Kea and
(ii) Map of Windward Hawaii Unit follows:
(10) Kau Unit: Hawaii County, Hawaii.
(i) The Kau Unit comprises 32,458 ac (13,136 ha) of occupied habitat in Hawaii County on the southeast slope of Mauna Loa Volcano. The unit consists of State and privately owned lands.
(ii) Map of Kau and South Kona Units follows:
(11) South Kona Unit: Hawaii County, Hawaii.
(i) The South Kona Unit comprises 51,376 ac (20,791 ha) of occupied habitat in Hawaii County on the west slope of Mauna Loa Volcano. The unit is comprised of four roughly similar sized areas separated from each by distances of less than 1 mi (1.6 km). This unit consists of lands owned by the U.S. Fish and Wildlife Service, the State of Hawaii, and private landowners.
(ii) Map of South Kona Unit is provided at paragraph (10)(ii) of this entry.
(12) North Kona Unit: Hawaii County, Hawaii.
(i) The North Kona Unit comprises 13,599 ac (5,503 ha) of occupied habitat in Hawaii County on the north, west, and south slopes of Hualalai Volcano. This unit is comprised of one large area to the north and one smaller disjunct area to the south. This unit consists of State and privately owned lands.
(ii) Map of North Kona Unit follows: